New York State Court Judge Who Helped Suspect Escape Removed from Bench:

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."

Steve:
This paragraph from the dissent is striking:

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.
6.15.2006 6:12pm
Richard Riley (mail):
I don't know, Professor. You're being very tough lately, what with your take-no-prisoners language to the Canadian copyright website the other day, and now your hard line with this misbehaving New York judge. I'm pretty tough on crime myself but I think the dissent in this case has it right - removal from the bench is too harsh a punishment for one lapse in judgment by an otherwise (as far as appears) skilled judge.

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.
6.15.2006 6:30pm
John (mail):
It's clear that the judge misapprehended what the arresting cop meant when he showed up. The majority seems to forgive that, but criticize her for failing to do some due diligence. But I wonder what the answer would have been if the cop actually did lie to the judge. In other words, would the court's aiding the escape have been justified if she conducted a full hearing and found the cop to be lying to her?

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.
6.15.2006 6:46pm
Marcus1 (mail) (www):
Seems to me her crime can best be described as judicial temper tantrum and megalomania. Tough call, but I'd probably censure a first time offense. Helping somebody avoid a lawful arrest is, of itself, probably worth removal, but I see a lot of significant mitigating factors.
6.15.2006 6:50pm
Marcus1 (mail) (www):
One important one: She wasn't hiding anything. She clearly thought, though erroneously, that her actions were justified.
6.15.2006 6:52pm
Steve Lubet (mail):
There have been roughly similar cases in other states -- judges tipping off friends to grand jury investigations, as i recall -- and i believe that the penalty was either suspension or 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.
6.15.2006 7:06pm
Steve Lubet (mail):
There have been roughly similar cases in other states -- judges tipping off friends to grand jury investigations, as i recall -- and i believe that the penalty was either suspension or 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.
6.15.2006 7:06pm
Steve Lubet (mail):
There have been roughly similar cases in other states -- judges tipping off friends to grand jury investigations, as i recall -- and i believe that the penalty was either suspension or 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.
6.15.2006 7:06pm
MR (mail) (www):
I thought suspects were arrested in court all the time!

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.
6.15.2006 7:22pm
DelVerSiSogna (mail):
It sounds, at first glance, like the same logic that leads to massively overinflated sentences for criminal defendants. Let's get this straight: "[U]ntil now no judge has [even] thought" about doing what this judge did -- but unless we remove this judge from the bench, rather than impose some censure, fine, or something else short of removal, there's some serious risk that she or another judge will do it again?

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.
6.15.2006 7:37pm
Splunge (mail):
I think the majority is quite right. 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.

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.
6.15.2006 8:00pm
logicnazi (mail) (www):
While I can't say this is appropriate behavior for a judge somehow I doubt judges who act to help out the police in similarly inappropriate ways get punished as severely. In particular I suspect that if the situation was somehow reveresed and the judge had inappropriatly acted to help the police apprehend a suspect they would have gotten away with a less serious punishment.

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?
6.15.2006 8:01pm
Spoons (mail):
To get a little better picture of what we were dealing with, google "Judge Laura Blackburne." Sounds like the state is well rid of this disgrace.
6.15.2006 8:06pm
therut:
The dissent just goes to show that Judges and Lawyers need oversight like they say every other business or profession needs. Until they stop this abuse of their power, which surely leads to great harm of society on many levels, some lawyers need to be noble and sue them. As we know such suits helps the little man and the people without political power. A group of such activists could come up with a scheme of legal theory that over time could be written into law. I bet they would have the majority of citizens on their side.
6.15.2006 8:52pm
DelVerSiSogna (mail):
Well, what do you know, the very next comment after mine provides a perfect illustration.

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.
6.15.2006 8:57pm
Enoch:
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, and we need to get over our urge to punish tax evaders, give me a second chance, and show me a little mercy.
6.15.2006 9:05pm
David M. Nieporent (www):
I'm pretty tough on crime myself but I think the dissent in this case has it right - removal from the bench is too harsh a punishment for one lapse in judgment by an otherwise (as far as appears) skilled judge.
I dunno; I'm betting the judge herself has sentenced people to prison based on "one lapse in judgment." Here, she merely lost her job.

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.
6.15.2006 9:59pm
Hattio (mail):
Well,
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).
6.15.2006 10:07pm
David M. Nieporent (www):
I tend to agree with the notion that the punishment shouldn't be a surprise, and here it is given the precedent.
But by definition every punishment is unprecedented at some point. That can't possibly be, by itself, a compelling argument. There is a difference between "it's unprecedented because others who have done this have always been treated more leniently," and "it's unprecedented because nothing like this has ever happened before."
6.15.2006 10:07pm
DelVerSiSogna (mail):
Enoch--

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.
6.15.2006 11:29pm
Kristian (mail) (www):

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, 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.
6.16.2006 12:08am
Marcus1 (mail) (www):
Yeah, I don't get the "surprise" idea. If she was actually weighing the punishment she would receive, then I think that in itself is justification for removing her.

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.
6.16.2006 1:05am
DelVerSiSogna (mail):
Kristian--

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.
6.16.2006 1:09am
David M. Nieporent (www):
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?
That would fly more if not for the fact that it was pretty damn obvious that it was illegal, as evidenced by the fact that the freaking court officer -- presumably, not possessing a law degree -- figured it out right away.

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.
6.16.2006 5:30am
KG2V (mail):
Actually, as someone said - google here. This is NOT the first time she's been in trouble/caused trouble. Look at things like her office redecoration (True - before she became a judge - but spending 10s of Ks on a couch when the city was in financal trouble?) The woman has been a problem for a LONG time
6.16.2006 6:54am
Kristian (mail) (www):

even if he did, calling off the game was impermissible under the rules

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.
6.16.2006 8:54am
Houston Lawyer:
This is a woman who assumed bad faith on the part of the officer, when she could easily have called him in to question him and find out the facts herself. Then she had other court officers specifically questioning her judgment and stating to her face that they thought she was obstructing justice. But she had to continue her hissy fit because she was somehow offended, an offence based entirely on her misunderstanding. Good riddance.
6.16.2006 11:15am
Reader (mail):
If she were a non-government employee, this would be a very easy call to make, and would not so clearly be viewed as "punishment." When you screw up at work, you get fired. That seems to make sense to me. For judges, the bar should probably be lower, not higher. (And let's start firing some profs, right Eugene?!)
6.16.2006 11:27am
NYC Guest (mail):
Semi-tangential to the present discussion, isn't it interesting that the dissenters are political opposites? Justice Bundy is one of the most liberal jurists on the Court of Appeals and Justice Smith is one of the most conservative (Justice Smith is a former President of the NYC Chapter of The Federalist Society).
6.16.2006 12:27pm
Eh Nonymous (mail) (www):
How permanent is being removed? I forget, is NY appointed or elected? Either way, there's usually a way back. Look at what happened in PA after the pay raise flap; a judge got de-elected, in what pundits interpreted as misdirected anger. Result: he'll be taken care of.

Look at that other judge in recent news, who lost because he had an unAmerican name, to a judicial newcomer: he'll be reappointed.
6.16.2006 1:01pm
Attila (Pillage Idiot) (mail) (www):
Reminds me of a cartoon.

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."
6.16.2006 1:47pm
Aaron:
Actually, they are both Justice Smith.

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.
6.16.2006 2:30pm
markm (mail):
"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."

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...
6.16.2006 4:18pm
Aaron:
EH
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.
6.16.2006 4:39pm
Salaryman (mail):
It bothers me somewhat that the judges in the cases cited in the defense seem fairly equally deserving of removal, but to me this seems to pose a problem of excessively light punishment being given them, not excessively harsh punishment being given Justice Blackburne.

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?
6.16.2006 5:02pm
markm (mail):
I think there'd be good reason to fire all those judges and Blackburne, too, but letting three of them off with a reprimand and firing one sounds a whole lot like politically motivated selective enforcement.
6.16.2006 5:03pm
Salaryman (mail):
Hmm. I meant "cases cited in the DISSENT," not "defense."
6.16.2006 5:03pm
David M. Nieporent (www):
Let's compare the danger this posed to the public safety what gets some other judges only censured:
Markm, did you read the whole opinion? The panel pointed out that the Mills case, at least, never got to them, implying that they would have fired the judge in that case, also.
6.16.2006 5:08pm
Salaryman (mail):
David: while I concur that the other instances of misconduct should have been treated more severely, I would be somewhat surprised to learn that a reviewing court would have discretion to dole out a harsher punishment than that imposed by the commission, as you seem to suggest. Maybe they do, but it strikes me as unlikely.
6.16.2006 5:34pm
Cyn23 (mail):
The case a bit closer than the negative press attention suggests, but the majority appears to use its discretion reasonably. The thing is that it could have decided the other way reasonably as well -- as the dissent (as noted different political sensibilities so it is not just a "support the lib" move) suggests as much. The one strike and you out policy was not used too much, even if, yes, it could be.

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.
6.17.2006 1:27am