On March 6, just fifteen
days ago, J.A.I.L. published a J.A.I.L. News Journal entitled, "Judicial Bribe-Taking, Caught In The Act."
Our first sentence stated, "CBS TV has done
America a favor by running an expose on the details of Judge
Garson taking a bribe on their TV program 48-Hours. Our thanks to CBS."
Now we all know that breaking the
rules has consequences. We were all taught this principle from the
days when we were a youth. When mom or dad said "NO!" they meant it, and if we
violated their orders, we either got our hand slapped, butts beat, or some
other form of corporal punishment such as grounding.
Now when we covered
the story of Judge Garson being caught red-handed before a camera
taking a $1000.00 bribe, we cheered because it is so seldom we actually get
to witness on camera a judge taking a bribe.
In our March 6,
2005 J.A.I.L. News Journal we reported an unconfirmed
statistic that nearly 30% of all judicial proceedings involve a bribe
Throughout this nation we have
established standards for judges. We call them "The Judicial Canon of
Ethics." In these Judicial Canon of Ethics we set forth what all judges are
forbidden from doing, or what we require of them, such as, "All judges
shall, in every judicial proceeding before them, maintain the appearance of
fairness and justice in all matters," or "Every judge shall refrain
from unilateral communications with parties to a action that is before them,"
and "Every judge shall recuse themselves from cases in
which they have a known conflict of interest, or if they feel they cannot
impartially judge in the case for whatever reason."
These edicts seem clear enough,
and make sense to everyone. But as this follow-up article below regarding the
arrest and trial of Judge Garson for bribery goes, it appears that if judges
choose to violate such principles, it is a "So What" issue, for these
principles are but mere recommendations without criminal
I dare say that if a set
of 10 Commandments were written for judges today, they would be entitled,
"The 10 Recommendations." So I ask, "When is the law not the law?" Answer: When
the violations thereof are committed by judges. Just imagine if citizens
could escape punishment for violations just like judges.
Remember this next time you are charged with driving
without a seat belt. -Ron Branson
Prosecutors Argue to Restore Felony Counts Against
New York Law
Questioning was sparse Friday during oral argument
at the Appellate
Division, Second Department, of the prosecution's appeal to
felony counts against former Brooklyn Supreme Court Justice
During the 45 minute argument, three of the four
judges on the panel queried the two prosecutors, Brooklyn Assistant District
Attorneys Leonard Joblove and Seth M. Lieberman, about regulatory language that
Justice Steven W. Fisher had relied on in dismissing six counts of receiving
rewards for misconduct against Mr. Garson.
Only one question a query
that embraced the prosecution's key argument was posed to Mr. Garson's lawyer,
The questioning did not in any way telegraph the judges'
views of the case.
The arguments centered on Justice Fisher's ruling last
April dismissing the reward counts on the strength of a 1979 decision issued by
the Court of Appeals finding that violations of the Code of Judicial Conduct
could not serve as a basis for criminal prosecution that a judge had committed
Despite the dismissal, Mr. Garson still faces a
bribery count and two other misdemeanors counts stemming from charges that he
gave court appointments, ex parte legal advice and preferential treatment to a
lawyer who gave him thousands of dollars worth of free drinks and meals, and in
one instance a box of expensive cigars. The lawyer, Paul Siminovsky, is
Five of the six dismissed reward counts related
to Mr. Siminovsky's payment of referral fees to Mr. Garson, an alleged violation
of a judge's duty under the code now set forth in Rules of Judicial Conduct
promulgated by the court system not to lend the prestige of the office to
advance private interests. The sixth count accuses Mr. Garson of accepting a box
of cigars for having given Mr. Siminovsky ex parte advice.
of the six counts was a serious blow to prosecutors because it meant they could
not present their most graphic evidence as direct proof of a crime. The
prosecution has videotapes, recorded in Mr. Garson's robing room, of Mr.
Siminovsky giving the judge the box of cigars and $1,000 for having referred
clients to him.
The videotapes will almost certainly come into evidence
Jeffrey G. Berry, who will preside over the trial, allowed
evidence at a trial last year of two court workers accused of
steering cases to Mr. Garson. But, without a reversal, the tapes will come in as
background material and not direct evidence of a crime.
With the referral
fee counts out of the case, the prosecution is left with
gifts such as free
meals and cigars at the core of its case.
In dismissing the reward
counts, Justice Fisher, who has since been
appointed to the Appellate
Division, Second Department, relied on the Court of Appeal's 1979 ruling in
People v. La Carrubba, 46 NY2d 658. Justice Fisher relied on a statement in the
preamble to the Rules on Judicial Conduct that the rules are "not designed or
intended" as a basis for "criminal prosecution."
Justices Robert A.
Lifson, Fred T. Santucci and Robert A. Spolzino, all
asked the two
prosecutors in one fashion or another whether they were not, in fact, seeking to
use the rules as a basis for a criminal prosecution.
Mr. Joblove, the
chief of the Brooklyn office's appeals bureau responded that a "plain reading"
of the statute made it clear that a violation of the conduct rules was the type
of infraction legislators had in mind when they defined a public servant's
violation of a duty as the crime of official misconduct.
statute is more broadly worded than the official misconduct
statute was in
1979 when La Carrubba was decided, Mr. Joblove noted. The statute now proscribes
a public servant's violation of any duty, not just one that is "inherent in the
nature" of the official's office.
Mr. Lieberman, the Brooklyn office's
senior appellate lawyer, argued that barring the prosecution of offenses under
the judicial rules would lead to an "absurd" result. Judges could be prosecuted
for the crime of receiving unlawful gratuities for actions they are supposed to
take, he pointed out, but not for receiving rewards for performing acts that
they were prohibited from taking.
Similarly, Mr. Lieberman contended, a
non-judge could be prosecuted for giving a judge such a reward, while the judge
The one question posed to Mr. White came from Justice Spolzino
who asked why the prosecution's view of the rewards statute that a violation
of the conduct rules was precisely the sort of dereliction the statute was
designed to encompass was not correct.
Mr. White said he would agree
with Justice Spolzino were judges not
involved. The only forum in which
judges may be disciplined for violating the conduct rules, he said, is the state
Commission on Judicial Conduct. The state Constitution and the Court's ruling in
La Carrubba make that clear, he argued, in order to preserve judicial
Arrested in 2003
Mr. Garson was
arrested in April 2003 and indicted on six felony counts of receiving rewards
for official misconduct. The crime of receiving a reward for official misconduct
is a Class E felony carrying a maximum sentence of 1-1/3 to 4 years in
In August 2003, Brooklyn prosecutors obtained a superseding
indictment adding the more serious charge of bribe receiving in the third
degree, a Class D felony with a top penalty of 2-1/3 to 7 years.
Fisher in People v. Garson, 4 Misc. 3d 258, rejected the
attempts to distinguish Mr. Garson's case from the precedent set by the Court of
Appeals in La Carrubba.
The Brooklyn office had argued that while La
Carrubba was pending the state Constitution had been amended to explicitly
subject judges to "rules of conduct" issued by the court system. The court
system subsequently promulgated rules based on the judicial code which at that
time was written by the New York State Bar Association.
The court system
rules, unlike those in the code, the prosecution noted,
rather than aspirational. The prosecution also stressed that La Carrubba
involved a misdemeanor charge of official misconduct rather than the more
serious charge of receiving a reward for misconduct.
In La Carrubba, the
Court overturned the conviction of a Suffolk County judge who had dismissed a
traffic violation issued to a friend.
Mr. Garson resigned from the bench
at the end of last year. Had he not
resigned he would have been required to
be certified by the Office of Court Administration to serve another two years.
Mr. Garson, 72, like all Supreme Court justices 70 or older, had to be certified
every two years to remain on the bench until he turns 76.
has pleaded guilty to the misdemeanor charge of giving
and prosecutors have agreed to recommend that he not be sentenced to jail as
long as he testifies as he has promised to. Mr.
Siminovsky has taken steps to
give up his admission to the bar and amended his cooperation agreement to pledge
that he will never seek reinstatement.
Daniel Wise can be reached