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Criminal Judicial Misconduct
When Judge Gerald P. Garson was confronted with evidence of his improper conduct with a lawyer to predetermine the outcome of cases that were brought before him, his attorney successfully argued at trial that he had merely violated the Rules of Judicial Conduct, for which there was no criminal penalty.  However, in an important precedent-setting decision, the New York State Court of Appeals overturned the lower court's judgment and held that Judge Garson could be criminally prosecuted for actions that grew from those violations.  The media should be credited for bringing the judge's corrupt behavior to the attention of the public as it was a major part of the story, "Chamber of Secrets," that was hosted on the CBS program 48 Hours on February 19, 2005 by Lesley Stahl and on June 2, 2005 by Charlie Rose.  CBS News has also provided a transcript as well as video clips (2 to 4 min) in wmv format: 1) Catching a Judge, 2) Case Fixing, and 3) The Pay Off.  The final chapter, when completed, should put judges on notice that the public will not tolerate the corrupting practices that unconditional immunity encourages.  Investigations by the media are crucial to the exposure of judicial corruption.

NY Judge in Bribe Case Sees Six Felony Counts Against Him Revived
March 31, 2006

ALBANY — The Court of Appeals yesterday reinstated six felony counts against former Supreme Court Justice Gerald P. Garson with a precedential ruling that judges can face criminal prosecution for acts that started with a violation of the Rules of Judicial Conduct.

Yesterday's 6-1 opinion means the former judge accused of accepting bribes and kickbacks from a divorce lawyer is once again confronted with the full panoply of felony charges lodged against him following a sting operation initiated by Brooklyn District Attorney Charles J. Hynes' office.

Mr. Garson now faces trial on a total of seven felonies — one count of receiving a bribe and six of receiving reward for official misconduct. All of the charges stem from an illicit attorney-judge relationship involving Mr. Garson and attorney Paul Siminovsky.

Mr. Garson's attorney, Diarmuid White of Manhattan, had argued — successfully in the lower courts — that the Rules of Judicial Conduct could not be used to criminally prosecute a judge. The preamble to the rules makes plain that they are not designed or intended to support a criminal prosecution, and the Court of Appeals accepted that proposition in People v. La Carrubba, 46 NY2d 658 (1979).

But yesterday, the Court clarified La Carrubba, holding that while a violation of the rules alone cannot sustain a criminal prosecution, judges are not immune from indictment when an ethics violation escalates into criminality.

In the Garson case, the Court said, the judge not only violated the ethics code by partaking in ex parte communications and by improperly lending the prestige of his office, but went a step further and took payment for his misconduct. That step, six of the seven judges agreed, transported Mr. Garson's case from the sole jurisdiction of a disciplinary agency to the criminal purview of Mr. Hynes' office.

"Had the judge as a public servant violated ethical duties alone — without accepting a benefit for the violation — and had the action not otherwise been prohibited by the Penal Law, the public servant would be subject to discipline in a proceeding brought by the Commission on Judicial Conduct," Judge Carmen Beauchamp Ciparick wrote for the majority.

The key legal holding yesterday — that the prosecution may rely on the Rules of Judicial Conduct to establish an element of a crime — was punctuated by a finding that La Carrubba is not controlling in People v. Garson, 28 [PDF].

The Garson case is rooted in a three-year relationship between a judge assigned to a matrimonial [court] in Brooklyn and a matrimonial lawyer.

The prosecution alleges that Mr. Siminovsky gave Judge Garson money and gifts in exchange for ex parte advice on pending cases, client referrals and favorable treatment. It also is alleged that the judge demanded a referral fee for his wife, now Civil Court Judge Robin Garson, who had apparently sent a client to Mr. Siminovsky. Mr. Siminovsky, according to proof before the grand jury, contributed to then-candidate Robin Garson's campaign, and also gave her husband $1,000.

Many of the charges stem from a divorce case involving Avraham Levi, who allegedly was steered to Judge Garson by Mr. Siminovsky. While the Levi case was pending before Judge Garson, the Brooklyn district attorney began a video and audio surveillance of the judge's robing room.

Judge Garson was heard telling Mr. Siminovsky that Mr. Levi would prevail, even though he did not deserve to, and instructing the lawyer on how to proceed.

Mr. Siminovsky was arrested shortly thereafter and agreed to assist the prosecution. The lawyer, wearing a recording device but unaware the video surveillance was continuing, brought Judge Garson a box of expensive cigars on March 4, 2003, and the two men further discussed the Levi case, according to court records.

On La Carrubba grounds, Justice Steven W. Fisher, now of the Appellate Division, Second Department, dismissed six felony counts of receiving reward for official conduct and two misdemeanor counts of official misconduct. That left only one felony of third-degree bribe-receiving and misdemeanors of official misconduct and receiving unlawful gratuities. The Second Department affirmed, also on La Carrubba.

Yesterday, the Court of Appeals, after Chief Judge Judith S. Kaye granted leave to the prosecution, reinstated the six felonies.

Perverse Result

At oral argument on Feb. 7, Brooklyn Assistant District Attorneys Leonard Joblove and Seth M. Lieberman stressed what they said was an illogical consequence that would result from an affirmance. They noted that, under Justice Fisher's decision and the Second Department opinion, a judge who takes a bribe while properly attending to his duties — for instance, while conducting a proper conference with all parties present — would face criminal sanctions. But a judge who took a bribe while violating the Rules of Judicial Conduct — for instance, while conducting an improper, ex parte conference — would be immune. That argument seemingly struck a chord with the Court.

"We see no justification for such a perverse result — not in the plain language of the statute, not in the legislative history, and not in our precedents," Judge Ciparick wrote. "Thus we conclude that the People may rely on the Rules Governing Judicial Conduct to prove the element of a judge's 'duty as a public servant' within the meaning" of the Penal Law.

Judge Ciparick said that since the rules are designed to ensure "the integrity of the judiciary and the resultant confidence and impartiality," then "any other construction runs afoul of these goals." She continued: "To hold otherwise, as urged by the dissent, would lead to the incongruous result of insulating judges from criminal liability . . . because they have a formal body of rules governing their conduct while subjecting other public servants . . . to criminal liability for similar conduct."

Was Defendant on Notice?

In lone dissent, Judge George Bundy Smith argued that neither the state Constitution nor the Rules of Judicial Conduct nor the Penal Law "authorize a prosecutor to charge a judge with crimes by alleging violations of the Rules of Judicial Conduct." Judge Bundy Smith said he could find no cases and no statutes giving any authority to hold a judge criminally liable for failing to abide by the ethics rules.

"There is no question that the prosecutor has amassed a great deal of damning evidence against the defendant," he wrote. "However, what is at issue is whether or not Rules of Judicial Conduct can be used as a predicate for a criminal prosecution . . . There is not a single case that supports the majority's assertion that defendant was on notice that the Rules of Judicial Conduct would serve as the basis for a criminal prosecution."

Judge Bundy Smith suggested the majority decision raises more questions than it answers. For instance, he pondered whether a judge who advises a friend or relative to retain a particular lawyer or recommends a particular law school runs the risk of criminal sanction. But the majority said that fear is unfounded.

"We do not imply that a judge, acting in a purely private, unofficial capacity, may not refer a friend or acquaintance to a lawyer when the judge expects no benefit for doing so," Judge Ciparick wrote in response to the dissent. "But the grand jury could have concluded that that is not what happened here."

Credibility Still at Issue

District Attorney Hynes told a press conference yesterday that the ruling "makes it crystal clear that this kind of conduct is not going to be acceptable," according to his spokesman.

"The law binds everyone equally, the judges no less than those who are judged," Mr. Hynes said.

Mr. White, Mr. Garson's lawyer, said that while yesterday's decision adds a slew of felony charges for his client to defend, the factual assertions underlying those felonies would have been admissible anyway when the trial begins June 15.

"In the big picture, it doesn't change things much," Mr. White said. "The credibility of the witnesses will be the issue."

The defense attorney also questioned the wisdom of the Court's ruling and the impact it may have on judicial-prosecutorial relations, particularly in the smaller communities.

"Judges could feel under some pressure that they are being scrutinized by the district attorney, and I don't think that is a good idea," Mr. White said. "That is why I think an independent judicial commission should be the body investigating judges, not the district attorneys."

Mr. Siminovsky, who was disbarred, has pleaded guilty to a misdemeanor of giving unlawful gratuities to a judge and awaits sentencing.

Copyright 2006 ALM Properties, Inc.

From: New York Lawyer, a publication of the New York Journal, March 31, 2006, http://www.nylawyer.com/display.php/file=/news/06/03/033106d, accessed 08/19/06 (registration is required).  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

  1. Jury selection for Judge Garson's trial is scheduled to begin September 6, 2006 unless the case is further delayed because of illness.  Garson faces a maximum of 2-1/3 to 7 years in prison.  See: Tom Perrotta, "NY Judge Charged With Taking Bribes; Seeks Trial Delay Due to Cancer Surgery," New York Lawyer, August 15, 2006.

  2. A compendium of articles leading to Judge Garson's indictment (which also describes a complex web of corruption in Brooklyn) can be found on the Web site of Citizens for Judicial Accountability.  See: http://www.judicialaccountability.org/articles/bribejudgebustedclerktrial.htm and http://www.judicialaccountability.org/articles/bribejudgefirststories.htm, accessed 08/17/06.

  3. The author is grateful to Edward Strange of Georgia JAIL4Judges, http://www.jail4judges.org, for providing links to the video clips of "Chamber of Secrets."

  4. Tapes of the 48 Hours mystery program, "Chamber of Secrets," may be available from CBS after September 5, 2006.  See: http://store.cbs.com/item.php?id=11713&sid=580, accessed 08/19/06.

  5. On April 19, 2007 Judge Garson was convicted of third-degree bribery and two counts of receiving rewards for misconduct.  See: Daniel Wise," DA Says Convicted NY Judge and Pol are Withholding Information on Court Corruption," New York Lawyer, April 23, 2007, http://www.nylawyer.com/display.php/file=news/07/04/042307d, accessed 04/23/07, (reprinted from New York Law Journal).

  6. On April 30, 2007 Judge Garson was sentenced to 3-to-10 years in prison for bribery and receiving rewards for misconduct.  See: Daniel Wise," Ex-NY Judge Gets 3 to 10 Years for Taking Bribes," New York Lawyer, May 1, 2007, http://www.nylawyer.com/display.php/file=news/07/06/060607f, accessed 06/06/07, (reprinted from New York Law Journal).

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