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Code of Judicial Conduct

In an unprecedented action in the County of Suffolk, the prosecutor, on behalf of the People of the State of New York, requests an order disqualifying or recusing this court from presiding as the assigned judge of two separate indictments charging the defendant with the commission of two counts of Burglary in the First Degree, Assault in the Second Degree and the marijuana Possession and Assault in the Second Degree and Sexual Abuse in the First Degree.

It is beyond dispute that a judge must be free from all prejudice or bias, actual or implied, and an impartial arbiter of all causes over which he presides. A judge should disqualify himself from a case “in which his impartiality might reasonably be questioned where … he has a personal bias or prejudice concerning a party.”

A Suffolk County Criminal attorney said that in affidavits replete with out-of-context quotations, inaccurate quotations, and arguments fueled in large measure by newspaper accounts and incomplete transcripts, they raise the serious allegation “that a pattern of conduct of this Court in these cases, as well as in other recent matters, has established a bias or animosity such that this Court’s impartiality might reasonably be questioned.”

In support of such application, they cite a decision dismissing an indictment, after a second Dunaway hearing conducted sua sponte, for the reasons set forth therein, as further evidence of the court’s “prejudice, bias and animus.” Though the decision pre-dated the first trial, and the preliminary hearings conducted thereon, it was not until after a jury had acquitted respondent of all charges including Murder in the Second Degree, and a new indictment was handed up by the grand jury charging with crimes committed while released on bail pending trial, that the prosecutor sought to have this court recuse itself as the presiding judge.

It would appear, therefore, that an investigation which has been initiated by the New York State Temporary Commission of Investigations is the impetus for the instant application. In that regard, the prosecutor argues that “this Court should not at the same time be an accuser/complainant in one forum and preside as a judge over proceedings involving the same defendant in another.”

Canon 3(b)(3) of the Code of Judicial Conduct, Appdx Judiciary Law provides, in part, as follows:”A judge should take or initiate appropriate disciplinary measures against a … lawyer for unprofessional conduct of which the judge may become aware.”.

Consequently, the court, as a result of certain prosecutorial and police conduct which it observed during the course of the aforesaid trials, and after conclusion of the trial, requested that the Governor appoint a special prosecutor to conduct an independent investigation out of “a deep abiding concern for the integrity of the criminal justice system in the County of Suffolk.”

It was toward that end that such investigation was requested, since it appeared that the independence, honor and integrity of this court was being threatened by conduct both within and without the confines of the courtroom. Nevertheless, any action by the governor was deferred pending the outcome of the instant investigation which had already been initiated by the state commission prior to this court’s request, upon its own initiative, and the governor’s office had been so apprised by counsel to the commission. Suffice it to say, therefore, that this court is neither the accuser nor the complainant in the pending investigation. Even if it were, in view of the conduct which the court observed during the trials, this court would be constrained by the Code of Judicial Conduct and its own conscience to take the unpleasant step of requesting such an inquiry.

Where the people contend, as they do, that the request for such an investigation places this court in an accusatory posture with respect to the office of the district attorney of Suffolk County, such contention clearly is misplaced. If that were the case, and it certainly is not, this court should properly recuse itself from presiding over any criminal matter in the County of Suffolk. Obviously, such argument cannot be made with validity; thus, the attempt to focus this court’s alleged bias toward the prosecution of the indictments.

It is well settled law both in this state and in the federal courts that in order for bias and prejudice to be disqualifying it “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”

It is certainly not the intent of the law or the Code of Judicial Conduct to permit a party to engage in conduct “in a course of litigation that might cause any conscientious judge to express, even in caustic terms, his disapproval of it, and thereby put himself in position thereafter to urge successfully motions to disqualify the judge in his subsequent cases before him.” Parties or lawyers, once embroiled in a self created controversy with a judge, “would have a license under which the judge would serve at their will.”

It is important to note at this juncture, however, that while the district attorney, who is not involved personally in these cases, remains the same, neither pending case is being prosecuted by either of the assistant district attorneys who tried the matters. Thus, even if there were such controversy extant between this court and the lawyers involved in those cases, the slate has been wiped clean as to the pending cases.

While the prosecution attaches great significance to the fact that this court will no longer conduct “off-the-record” conferences of cases assigned to the major offense bureau in chambers, their concession that they seek to have this court recuse itself only from the matters, although other major offense cases are pending before it, nullifies the logic of their argument that this court somehow has an animus directed against that particular bureau of the district attorney’s office. More importantly, this court has the unbridled discretion to conduct its calendar in the best way it sees fit, without having to answer to the prosecutor or the defense bar.

Partiality, or the appearance thereof, in the context of a criminal prosecution, is synonymous with impropriety; and the appearance of impropriety, like beauty, is in the eye of the beholder. Conduct, which one may seek to paint as impropriety, or in this case, partiality, may in fact be propriety, necessitated by the conduct observed within the judicial confines, and this court knows of no cases where a judge has been disqualified by reason of acts of propriety. The true measure of a judge’s bias, hostility or prejudice are the decisions which he or she has rendered in regard to the party alleged to be the target of such bias and prejudice, and the prosecutor can point to no action taken by this court as a result of same.

Furthermore, at a time when this court allegedly was harboring bias, hostility and prejudice towards the office of the district attorney, a motion to suppress an alleged oral confession of the defendant was denied after a lengthy Huntley hearing. Once again, the facts and the results fly in the face of the logic of the prosecutor’s allegations. Moreover, “inferences drawn from prior judicial determinations are insufficient grounds for recusal because it is the duty of the judge to rule upon issues of fact and law and questions of conduct which happen to form a part of the proceedings before him.” This is especially so, where the prior rulings, as often as not, favored the party alleged to be aggrieved.

The easiest course of action which this court could take in these matters would be to recuse itself. This court would then be free of the albatross which has weighed heavily upon it for the last several months. Presumably for now, the fires which have been fueled by the charges of animus, hostility, bias and prejudice will be dampened, and the court would be free and unfettered to deal with the many other matters pending before it. As one defense counsel stated in his since withdrawn oral application for recusal: “comments about this case may put undue pressure on any individual, and perhaps on this Court.” Perhaps, another judge, given the same set of facts and circumstances would opt for recusal and self disqualification in an effort to avoid an unpleasant confrontation. However, the question of when a judge should disqualify himself is generally a matter of personal conscience, since only the individual judge knows fully his own thoughts and feelings.

While the option of recusal is indeed a tantalizing morsel available for the taking, this court’s own conscience and sense of justice will not permit the first tempting bite. Bribery was not involved.

The people are certainly entitled to a fair trial, and they can rest assured that they will get one by this court. However, the defendant is likewise entitled to a fair trial. Due process calls for nothing less. While the prosecutor graciously suggests that these cases be transferred to any other judge of this court to “insure the integrity of the judicial process,” it is no less judge shopping to improperly, and without legal basis therefor, seek to avoid one judge as it is to seek another.

At another time, in another jurisdiction, another judge, under similar circumstances, found himself confronted with allegations of prejudice and bias. Then, however, it was the defendants who claimed bias against them, and who sought to have the judge disqualify himself.

While the significance of the issues before this court pale by comparison to those which confronted the Judge in Watergate, a criminal case which “has been called one of the most important cases in American judicial history”, nonetheless, the principle that a judge is under an obligation to deny a groundless application for recusal transcends the magnitude of those issues.

“A judge before whom a case is moved for trial shall preside at such trial unless he is satisfied … that he is unable to serve with complete impartiality, in fact or appearance …”

Under these circumstances, and after careful consideration of the law, and as a matter of personal conscience, this court has no choice but to continue to preside over these trials, and to deny the application for recusal. For all of the foregoing reasons, the application is hereby denied and Indictment Number 1103-84 is scheduled for trial January 27, 1986 at 9:30 A.M., Part VI, before the undersigned.

Possessions of illegal drugs and/or substances are punishable under this jurisdiction. For a quality and dependable advice, you can consult our Suffolk County Criminal lawyers, who will assist and inform you of your rights as an accused. For marijuana related cases, we also have Suffolk County Marijuana Possession attorneys, who will represent you in court, once a case was already filed. Call us now, we will be glad to help you.

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