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Wed, 4 Oct 2006 14:29:12 EDT

 'Utterly Inexcusable' Acts Prompt Censure of Judge

By John Caher
New York Law Journal
10-04-2006

An Albany city judge who descended from the bench, dropped his robes on the floor and seemingly challenged a defendant to a fist fight in court barely escaped removal in a divided opinion Monday by the Commission on Judicial Conduct.

In another incident, the judge suggested police officers "thump the shit out of" another allegedly disrespectful individual.

Majority and dissenting opinions make clear that Albany City Judge William A. Carter came within a thread of losing his job, and make equally clear that he will not get a second chance. Although the commission staff and two commissioners called for removal, the majority voted for censure, while describing Carter's conduct as "deplorable" and "utterly inexcusable."

But the commission's opinion, released Monday, also delves deeply into three broader issues with which the watchdog panel has recently struggled: whether it should require a full-blown hearing before removing a judge, or just rely on a stipulation of facts; when legal error constitutes misconduct; and whether the commission should have the power to suspend judges guilty of misconduct. The decision can be found at the commission's Web site, www.scjc.state.ny.us.

Carter was involved in two incidents that local practitioners suggest were oddly inconsistent with his performance and behavior since he became a judge in January 2002 and during earlier stints as a prosecutor and defense lawyer.

Commission records show that in November 2004, Carter was presiding over an arraignment in which a pro se defendant challenged the legality of the accusatory instrument. After the defendant became agitated and said he did not want to continue with the proceeding, Carter left the bench, threw off his glasses, dropped his judicial robes and rushed toward the defendant, records show.

One witness said the judge approached the defendant and demanded, "You want a piece of me?"

Carter does not recall making the remark, but he does not deny it.

One police officer quickly removed the defendant from the courtroom while another physically blocked the judge by standing in his way and preventing him from pursuing the accused. There was no physical contact between the judge and the defendant, although according to the decision Carter did come within inches of the police officer, who stepped from side to side to block the judge's path.

Four months later, while Carter was under investigation by the Commission on Judicial Conduct, a police officer advised the judge that a defendant whom he had just released -- improperly it turns out -- had made an offensive gesture toward the court. Carter apparently did not see the gesture and told the police officer that if he was so upset, "Why don't you just thump the shit out of him outside the courthouse."

Carter had improperly released that defendant on his own recognizance, even though he was required under the Criminal Procedure Law to remand without bail since the defendant had two prior felony convictions. A year earlier, the commission had issued Carter a letter of caution, reminding him to observe the requirements of the Criminal Procedure Law in making bail decisions.

The case over the judge's behavior generated four separate writings from the commission.

In the main opinion, the majority made plain their disdain for Carter's conduct and sent a clear message that the decision "places respondent on notice that any future ethical lapses will be viewed with appropriate severity."

But the majority noted that Carter had been "cooperative and contrite throughout this proceeding," and went on to call for a constitutional amendment that would permit the agency to suspend judges without pay. Now, its only options are removal, public censure or private admonishment.

"We believe that such a sanction is appropriate for cases in which the judge's conduct is truly egregious but does not irretrievably damage the judge's effectiveness on the bench," the majority said in an opinion joined by Chairman Raoul Lionel Felder and commissioners Stephen R. Coffey, Colleen C. DiPirro, Richard D. Emery, Marvin E. Jacob and Justice Karen K. Peters of the Appellate Division, 3rd Department. "Were suspension available to us, we would impose it in this case to reflect the severity with which we view respondent's conduct. Absent that alternative, we have concluded that a censure should be imposed."

Two commission members, both sitting judges, dissented.

Perinton (Monroe County) Town Justice Thomas A. Klonick signed onto Court of Claims Judge Terry Jane Ruderman's forceful dissent, which argues that Carter's "total lack of self-control and the necessary judicial temperament" render him unfit for office.

"It is shocking for a judge, in open court, to offer himself as a willing combatant when a judge's role is to maintain a neutral atmosphere in the courtroom," Ruderman wrote. "Respondent's conduct is outrageous, appalling and brings disgrace to the bench by implicitly suggesting that physical violence is an acceptable means toward resolution. ... It is anticipated that, at times, despite counsels' attempts to control their clients, a highly emotional litigant may become unruly. It is not to be anticipated that the judge presiding over the matter may be the one who needs to be restrained."

Coffey, joined by Felder, agreed that Carter should be censured. But they would not have found Carter guilty of misconduct for violating the Criminal Procedure Law and releasing a defendant he had no power to release. That, they said, amounted to a legal error.

"Novel in its import, our decision quite simply puts judges on notice that they may very well be subject to our scrutiny if they make a simple legal mistake which hurts no one," Coffey wrote. "Moreover, it is quite likely that the majority's unprecedented finding of misconduct could well intimidate judges who will legitimately become more fearful of making potentially controversial decisions, believing they could be disciplined for doing so."

Coffey added that it is "not a stretch to foresee that the long term effects regarding this particularly minor transgression will be much more far reaching than the rest of the decision. ... The ramifications of the majority's finding of misconduct, based on a single legal mistake and what it will convey to judges, cannot in my mind be underestimated."

Emery wrote separately to complain about the process, as he has in the past.

Records show that the commission's attorneys, Robert H. Tembeckjian and Cathleen S. Cenci, and the judge's attorney, Mark S. Mishler of Albany, agreed on a stipulated set of facts.

Carter essentially admitted the allegations, and Tembeckjian and Cenci agreed to submit the matter to the commission, with a recommendation for removal but without a fact-finding hearing. Mishler continued to push for a lesser sanction. The commission was left to make the final determination.

But Emery said the agreed statement leaves "unresolved thorny factual questions that if resolved might well mandate removal." But he said the record was not developed to his satisfaction and, consequently, he would not join the dissent.

"I have personal doubts that, except in the most exceptional circumstances, we should ever remove a judge without a full hearing," Emery wrote. "I suspect the public would be better served and protected if Judge Carter were removed. However, I cannot reach that result on the record before us."

Mishler, of Walter, Thayer & Mishler, said the incidents giving rise to Carter's censure were unprecedented and an aberration, as the commission acknowledged in its opinion.

"He is a great judge and he shows that every day by how he treats the people who appear in front of him -- defendants, victims, complainants, lawyers," Mishler said. "He is considered a thoughtful and smart judge who cares quite a bit about what happens in his courtroom and the impact of what happens in his courtroom. He is human. He did something wrong. He understood from the beginning that the conduct was inappropriate and that he would be accountable for it. There will be, and ought to be, some discipline imposed."

Carter is a former Albany County chief assistant district attorney and state trooper.