Here's the decision; thanks to How Appealing for the pointer. The dissent (with which I disagree) captures the facts well:
On June 10, 2004, Justice [Laura] Blackburne was informed that a police officer was present who wished to speak with a defendant who had been referred to a drug treatment program. She was subsequently informed that the officer was there to arrest the defendant. She was not informed what the arrest was for. She directed a court officer to escort the defendant from the courthouse to avoid being arrested in the court. [Note: The court officer was told to just release the defendant, and not to turn him over to the would-be arresting officer's custody outside the court. -EV] She stated on the record that she was not trying to prevent the arrest but was acting because she felt that she had been misled.
The majority, I think, is quite right to conclude that this misconduct was serious enough — I would say even criminal obstruction of justice, since it involved giving a suspect active help in avoiding arrest — to warrant removal from the bench, even based just on this one incident.
The dissent argues that a lesser penalty should be imposed, based partly on the judge's past "outstanding" record. But my sense is that a judge who misbehaves this seriously needs to be removed from the bench (in a state such as New York which allows such removal for the judge's not being "faithful to the law"), and that the majority analysis is therefore quite right. And though there was no specific precedent on point about the propriety of this sanction, "That until now no judge has thought to prevent the lawful arrest of a suspected felon cannot shield petitioner from the necessary consequence of her actions."
There is no good reason why the judges in the following cases were censured while Justice Blackburne is removed. In Matter of Friess (1982 Annual Report 109) the judge released a murder defendant into his custody and then took her home with him (no sexual purpose existed). In Matter of Dusen (2005 Annual Report 155) the judge issued an illegal court order and fabricated a conviction so that the defendant could be deported. In Matter of Mills (2005 Annual Report 185), a defendant who had been acquitted and was not represented by counsel was held in an isolation cell for five days and a contempt order was doctored to cover up the basis for the incarceration. The same judge jailed a defendant's father who allegedly used an expletive in a parking lot.
Maybe these all sound like bad precedents which shouldn't be followed, but there is merit to the view that a disciplinary entity shouldn't suddenly decide to apply a new, much harsher standard without any notice.
The specialized drug treatment court described in this opinion clearly is meant to be a place where strict police procedures are avoided in an effort to foster drug users' recovery. I can understand why the judge was angry - the arresting detective was arguably violating the spirit of this court, and perhaps taking advantage of the informality of the place. I certainly agree some sanction was necessary but I don't feel as harshly toward Justice Blackburne as the court majority here did.
Probably not. And if I am right, then the fact that she was mistaken is really not relevant.
As to the penalty, the dissent does cite a few cases of pretty egregious conduct that wound up being censured only. However, I don't think any posed any public risk of harm, the way assisting the escape of a person being charged with some unknown felony might.
In this case, the judge immediately acknowledged the violation and expressed remorse. Seems to me that suspension would probably have been a sufficient penalty under those circumstances.
On the other hand, the New York Commission on the Judiciary is a very thoughtful outfit, so they must have had good reason to argue for removal.
In this case, the judge immediately acknowledged the violation and expressed remorse. Seems to me that suspension would probably have been a sufficient penalty under those circumstances.
On the other hand, the New York Commission on the Judiciary is a very thoughtful outfit, so they must have had good reason to argue for removal.
In this case, the judge immediately acknowledged the violation and expressed remorse. Seems to me that suspension would probably have been a sufficient penalty under those circumstances.
On the other hand, the New York Commission on the Judiciary is a very thoughtful outfit, so they must have had good reason to argue for removal.
See: Law &Order (any one of the series). There they usually act before the judge can say anything, and the judge always has a "I guess they'll try anything" look on his or her face.
I tend to agree with the notion that the punishment shouldn't be a surprise, and here it is given the precedent.
The logic here is so weird. Cost-benefit calculations fly out the window, and people seem to have a visceral reaction to other people screwing up that makes them want to punish, punish, punish. It would be one thing if the retributive impulse were openly discussed, but it usually isn't -- instead, it gets masked into arguments about how we have to "send a message" or how we risk "jeopardiz[ing] the very legal system" if we don't act with swift vengeance.
A bit of calm and perspective is in order. The world is not going to go running off the handrails just because we give people a second chance or show a little mercy every now and then.
I recall a similar case in my field. One of my fellow graduate students was once caught giving answers to an exam to an undergraduate in a class for which he was a teaching assistant. He was immediately dismissed from the PhD program (and thereby permanently barred from a university-level teaching career). I agreed with the punishment, although it was his first transgression, and an equivalent offense by an undergraduate (or even a graduate student not in the trust position of a teaching assistant) would not have been punished so severely.
Yet it seems this is exactly the opposite of what we want. Judicial misconduct that puts people in prison or violates individual rights seems far worse, act for act, than those which help criminals (especially if this guy was merely a non-violent drug offender) temporarily avoid arrest.
This is a bit off topic but does anyone know what sort of discipline a judge would face who issued a search warrant on obviously insubstantial grounds? Say a situation where there was clearly no admissable grounds for a warrant but their was unadmissable reasons to believe he was a criminal or just based on police assurance that this was really a bad man?
Blackburne's actions convince me she forgot she was a servant of the law and not vice versa. This threatens the very existence of the trust between the general public and the judiciary, and demands the severest possible punishment.
This is exactly the kind of fuzzy abstraction about punishment that just mystifies me. Okay, so in some sense she "forgot she was a servant of the law." A noble and fancy way of saying that she got carried away and did something she should've known the law did not permit. Great. Now, this "threatens the very existence" of public trust in the judiciary? Ummm, no. Well, okay, ummm, yes, a very tiny bit. But if this single incident were a serious "threat" to the judiciary's stature, then we'd be beyond hope. Happily, it's not -- caelum non ruet. And--as is typical--there's not the slightest explanation of why on earth the fact that a judge "forg[o]t" something in a single, isolated instance--which everyone concedes was an anomaly--somehow "demands the severest possible punishment."
Again: calm down. We can usually get along just fine without zero-tolerance policies.
And, as the panel noted, she had several opportunities to reconsider, and she refused to do so, so if it was "one" lapse in judgment, it was an extended one.
I must admit that I'm torn between the Majority and Dissent and see the point of both. But I have a more important question. Why does everybody keep saying she helped a felon escape? Don't you have to be in custody to escape? The felon was never in the officers custody. At most this is obstruction, and probably just hindering prosecution (oftentimes a misdo).
I hope someday when I accidentally forget to pay my taxes, DelVerSiSogna will be there to remind everyone that a "zero tolerance policy" against tax evasion is too extreme....
If by this hypothetical "zero tolerance" policy you mean a rule where everyone who forgets to pay his taxes goes to jail or even loses his job, then please contact me when this comes up and I will happily remind everyone of the virtues of mercy.
Actually, though, that's a great example. You might reason, "Forgetting to pay your taxes threatens the very fabric of our government, which requires contributions from everyone!" But I think we treat tax-forgetters quite lightly, in general -- pay the tax you owe, plus some interest and fines, and you're set.
Well, I think this is more like, say, a soccor referee intentionally helping one side. It doesn't matter which, it is wrong, and IS prejudicial to the integrity of the system.
I do notice that all of the other removals were for things that the judges most certainly realized were illegal, though. Isn't that a strong argument in favor of censure over removal?
The dissent discusses the public outrage, raised by Pataki and others. I think absent that, it would probably have been censure.
Your soccer referee analogy is misleading, because the image that immediately comes to mind is a referee secretly throwing calls to the team he favors. But that's not what happened here at all.
Here's how a fair soccer analogy would go. Imagine that a team captain says something to the referee, which the ref misunderstands as an obscene insult. The ref, angry and feeling the need to preserve his authority, announces that the game is forfeit and victory goes to the other team. The losing team complains, the regional soccer officials investigate, and they find that (1) the player didn't say anything obscene, and (2) even if he did, calling off the game was impermissible under the rules.
Should this ref--who is, let's say, a respected, full-time career referee with an unblemished record--be dismissed entirely from the sport? Call me a softie -- I say no.
If she didn't know that what she was doing was wrong, that calls into question her legal reasoning skills as well as her judgment.
Yes, that would be grounds for dimissal. And officials/referees are fired for less.
In this Judges case, I am not arguing the punishement should be autmoatic (like say taking a bribe to affect the outcome). I am not saying the punishment was mandatory. I am saying that it was not unjust.
One of the reason, sadly, the story is so unusual is how frequently we hear of judges, like those in mentioned in the dissent, that do NOT recieve just or appropriate punishments.
Look at that other judge in recent news, who lost because he had an unAmerican name, to a judicial newcomer: he'll be reappointed.
A lawyer in a courtroom has a gun drawn, and the judge, bailiff, and other lawyer have their hands up. The defendant speaks: "God knows you couldn't ask for more in a court-appointed lawyer."
You have to get beyond this one episode to see why she was truly canned. Judge Blackburne has the reputation of being a defense-oriented judge. The various police unions have hated her for year. It was easy for politicians to pile on (who wants to be viewed as soft on criminals). Once this perfect storm made it into the papers, her fate was sealed. I agree that it her actions were awful, but we have judges sitting in Brooklyn who are under indictment for bribery who weren't removed from the bench. This punishment did not fit the crime.
Let's compare the danger this posed to the public safety what gets some other judges only censured:
"In Matter of Friess (1982 Annual Report 109) the judge released a murder defendant into his custody and then took her home with him (no sexual purpose existed)." It sounds like Friess took a risk that the murder suspect would take advantage of this to escape. I don't know what the person Blackburne protected was charged with, but if he was anywhere near as potentially dangerous as a murderer, I'm sure Blackburne's enemies would have been trumpeting it from the rooftops. (Of course, remember that both offenses were only alleged at the time the judges acted...)
"In Matter of Dusen (2005 Annual Report 155) the judge issued an illegal court order and fabricated a conviction so that the defendant could be deported. In Matter of Mills (2005 Annual Report 185), a defendant who had been acquitted and was not represented by counsel was held in an isolation cell for five days and a contempt order was doctored to cover up the basis for the incarceration. The same judge jailed a defendant's father who allegedly used an expletive in a parking lot." I'd call a judge who arbitrarily throws people in jail or fabricates evidence to get them deported a danger to the public in themselves...
NY trial level (Supreme Court) judges are either elected, or appointed as "Acting" Justices. Either way, they have to be certified by the CJC for duty. Essentially, Justice Blackburne has been the judicial equivalent of disbarred. She can never be a judge again (barring some miracle and reconsideration). Even if she were to be elected (she is ineligible to be placed on the ballot) by some weird write-in campaign, she could not be sworn in.
Since I'm not a criminal lawyer, I'll ask those of you who are: Suppose the police inform me that they're seeking to arrest my friend X for a crime and ask if I know where they can find him. If, instead of saying "sure, he's in my living room watching TV" I say "beats me," and then help X flee the jurisdiction, what happens to me? Do I, like Justice Blackburn, lose my prestigious job, while being free to seek another, arguably equally prestigious and probably more financially rewarding job elsewhere? Or do I get prosecuted and face jail time?
I suppose it would be nice for me and X if society had adopted DelVerSiSogna's views and rejected a misguided "zero-tolerance" policy regarding this sort of thing -- and believe me, it was my first time and I won't do it again, honest! -- but my uneducated guess is that I'm basically screwed. Am I right?
P.S. Aaron says Justice B. is now "the judicial equivalent of disbarred." I'm guessing that if I did something similar to the hypo above, I'd be looking at good old-fashioned 100% genuine disbarment, with no low-cal substitutions allowed. (Happily, my experience with disciplinary proceedings is as non-existent as my knowledge of criminal law.) Why isn't Justice B facing the same?
Anyway, the comments clarified the issues much more than the main post including the nuances that might have gone the dissent's way. The post was not really that evenhanded, which is unfortunate. I'd add that the "specialized drug treatment court" suggestion is truly interesting.
Also, unless setting forth a new policy, which the majority didn't seem to be doing, the fact you think the Court was too moderate in the past is not quite relevant in a consistent application of the rules.