Court Considers Removal For An ‘Error Of Judgment’

New York Law Journal

March 3, 2006

COURT CONSIDERS REMOVAL FOR AN ‘ERROR OF JUDGMENT’

Blackburne Sorry, Gained Nothing, Lawyer Argues

By John Caher

ALBANY — Should a single, aberrational act of misconduct that reflects woefully poor judgment but no venality subject an otherwise respected judge to expulsion from the judiciary?
That is apparently the central question as the Court of Appeals weighs whether to remove Queens Supreme Court Justice Laura D. Blackburne for helping a robbery suspect evade police.
During oral argument yesterday in Matter of Blackburne v. State Commission on Judicial Conduct, 70, the judges returned repeatedly to the core theme of David M. Godosky’s argument: that the Court has never before removed a contrite judge for a single error when the judge received no benefit for his or her misconduct.
Mr. Godosky , of Godosky & Gentile in Manhattan, told a seemingly receptive Court that if it upholds the Commission on Judicial Conduct and orders Justice Blackburne removed from the bench, it would mark an unprecedented and unduly harsh application of the Code of Judicial Conduct.
The commission’s attorney, Robert H. Tembeckjian, agreed that Justice Blackburne’s record was previously unblemished, that she in no way profited from her mistake and that shortly after helping the suspect escape she owned up to the error and apologized. But, he said, some judicial misconduct cases are so egregious and so negatively impact the public perception of the judiciary that nothing less than removal will do. This is such a case, he said.
Matter of Blackburne is rooted in a widely publicized incident on June 10, 2004, when Justice Blackburne encouraged a drug court defendant to escape through a private stairway so he could avoid a police detective waiting to arrest him on robbery and assault charges.
Justice Blackburne has said she was concerned that an arrest at her drug court would undermine the program and lead to an impression that judges were in cahoots with prosecutors.
The record indicates that she initially thought the detective simply wanted to question Derek Sterling as a witness, but then learned he intended to arrest the suspect.
Justice Blackburne has said she thought the detective was trying to mislead her–although she never spoke to him–and reacted inappropriately out of anger.
Both a court officer and an assistant district attorney strongly urged Justice Blackburne, who placed the entire transaction on the record, not to let Mr. Sterling go. She failed to heed that advice, despite having at least a couple of hours to think it over, and had a court officer worried that he was obstructing justice show Mr. Sterling out the back way.
Mr. Sterling was caught the next day and arrested on charges that were later dismissed.
Several public officials, including Governor George E. Pataki and Mayor Michael R. Bloomberg, criticized Justice Blackburne. The tabloids denounced her as ‘Let-‘Em-Go-Laura,’ ‘Loony Laura,’ and a ‘judicial jerk.’
The Commission on Judicial Conduct voted 8-2 for her removal, with the dissenters arguing that censure is more appropriate for a first-time offense.
Yesterday, the argument focused not on whether Justice Blackburne committed misconduct, but on the sanction.
Mr. Godosky made little attempt to excuse or rationalize Justice Blackburne’s behavior and urged the Court to censure rather than remove his client.

NAACP Brief
He also distanced himself from and all but disavowed an amicus curiae brief submitted by the National Association for the Advancement of Colored People.
The NAACP brief, submitted by a lawyer in Chicago, portrays Justice Blackburne as the victim of right-wing extremists and argues that removing Justice Blackburne , who is black, would fuel suspicions that black judges are held to a more demanding standard than other judges.
In response to a question from Judge Carmen Beauchamp Ciparick, Mr. Godosky said he does not share the group’s characterizations of the case.
‘She made an error, an error in judgment and a mistake,’ he said. ‘Nevertheless, the record is clear, and the commission agrees, that act of misconduct, that the mistake, was not venal or for a selfish purpose.’
The initial questioning of Mr. Godosky centered on whether there is any precedent for removing a judge who committed a single act of misconduct without profit. With the case law on his side, Mr. Godosky seemed off to a good start. But he was quickly challenged by Judges Ciparick and Robert S. Smith.
Judge Ciparick noted that Justice Blackburne was counseled and advised not to let Mr. Sterling go, an indication that her decision was not a rash, spur-of-the-moment action.
Judge Smith questioned the fitness of any judge who does not already know that helping a suspect evade police is highly inappropriate.
‘Shouldn’t a judge know intuitively that if you are a judge you don’t send someone the police are looking for out the back door?’ he asked. ‘Isn’t that common sense?’
Judge Smith said it was solely a matter of luck that Mr. Sterling did not flee the jurisdiction or, worse, commit another crime after he was released.
‘Do you get the sense that she appreciates that this was not just a mistake, but this was way off the rails?’ Judge Smith asked.
Mr. Godosky said the record is ‘replete’ with Justice Blackburne’s sincere expressions of remorse.
‘She cannot imagine doing this again in her worst nightmare,’ he said. ‘She certainly understands the gravity of what she did.’
Mr. Godosky referred to amici briefs submitted on Justice Blackburne’s behalf by the Queens County Bar Association, the Association of Black Women Attorneys, Queens Law Associates, the Latino Lawyers Association and the Association of Supreme Court Justices. He said those briefs reflect Justice Blackburne’s continuing credibility among both the bench and bar. That prompted Judge Ciparick to ask about the NAACP brief.
‘One of the amici discusses the possibility of political pressure on the commission,’ Judge Ciparick said. ‘Do you espouse to that?’
‘I do not, your honor,’ Mr. Godosky responded. ‘I would say the reason I think something like that gets filed is it attempts to demonstrate there is a significant part of the community that is very upset and angry and outraged by the commission’s determination.’

‘Beyond the Pale’
Mr. Tembeckjian argued that Justice Blackburne’s misconduct was so ‘beyond the pale’ that no sanction short of removal, ‘even in the absence of aggravating factors,’ would send the proper message.
‘I agree that this was aberrational, that there is nothing in the record to indicate the judge has done this before, nor can we conclude she is likely to do this again,’ Mr. Tembeckjian said.
He reminded the judges that in one of the cases cited by the respondent, Matter of Sims, 61 NY2d 349 (1984) , the Court had said that even extremely poor judgment is not necessarily grounds for removal. However, in that case, where the commission recommended censure, the Court voted for removal.
Mr. Tembeckjian suggested Blackburne is analogous to Sims, but said the strongest case in Matter of Gibbons, 98 NY2d 448 (2002) , where a judge tipped off the target of a search warrant and the Court of Appeals upheld a removal determination.
Judge Smith, however, asked if there was any case where the Court or commission had removed a judge for a single act of misconduct, where there is no trace of venality and where the judge is remorseful.
‘Where there is no indication of venality, where there is no personal gain, where there is a clean record, this would undoubtedly be a first,’ Mr. Tembeckjian responded.

John Caher 5/3/2006 NYLJ 1, (col. 4)