In the Matter of the
Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law, in Relation to LESTER
EVENS, a Judge of the Civil Court of
the City of New York, New York County.
THE COMMISSION:
Mrs. Gene Robb, Chairwoman
John J. Bower, Esq.
David Bromberg, Esq.
E. Garrett Cleary, Esq.
Dolores DelBello
Victor A. Kovner, Esq.
Honorable William J. Ostrowski
Honorable Isaac Rubin
Honorable Felice K. Shea
John J. Sheehy, Esq.
APPEARANCES:
Gerald Stern (Karen Kozac
and Jean M. Savanyu, Of Counsel) for the Commission
Beldock Levine & Hoffman
(By Myron Beldock) for Respondent
The respondent, Lester
Evens, a judge of the New York City Civil Court, New York County, was served with a Formal
Written Complaint dated August 30, 1984, alleging four instances of undignified behavior. Respondent filed an answer dated October 29, 1984.
By order dated November 20,
1984, the Commission designated Haliburton Fales, II, Esq., as referee to hear and report
proposed findings of fact and conclusions of law. A hearing was held on March 12, 13 and 14, 1985, and the referee filed his report
with the Commission on May 13, 1985.
By motion dated May
24, 1985, the administrator of the Commission moved to disaffirm the referee's report, to
adopt additional findings and conclusions and for a finding that respondent be censured. Respondent opposed the motion on June 12, 1985,
and moved to confirm the referee's report and dismiss the Formal Written Complaint.
On June 20, 1985, the Commission heard oral argument, at
which respondent and his counsel appeared, and thereafter considered the record of the
proceeding and made the following findings of fact.
As to Charge I of the Formal Written Complaint:
1. Respondent is a judge of the New
York City Civil Court and has been since 1978.
2.
On February 27, 1984, respondent was sitting by
designation in the New York City Criminal Court.
3.
Beth Reilly, a defendant with numerous convictions for
prostitution and loitering for the purpose of prostitution, appeared in respondent's court
on two outstanding bench warrants.
4.
Respondent re-sentenced Ms. Reilly to time served on one
charge and ordered her to pay a $40 mandatory surcharge owed in connection with the second
charge.
5.
Ms. Reilly indicated through counsel that a friend would
come to court and pay the $40. Respondent
ordered Ms. Reilly to remain in the courtroom until the friend arrived and the fine was
paid.
6.
Thereafter, respondent saw Ms. Reilly sleeping in the
courtroom and ordered a court officer to bring her to the bench to sit beside respondent.
7.
Ms. Reilly was placed in a chair to the left and slightly
behind respondent's chair.
8.
Ms. Reilly remained on the bench until the court was
recessed for lunch. After lunch, respondent
ordered her returned to her chair beside him for the afternoon session. She was seated on the bench for at least three
hours.
9.
Respondent's order to have Ms. Reilly seated at the bench
drew laughter and snickers from court personnel.
10.
While Ms. Reilly was seated beside respondent, he
conducted other court business as usual. At
one point during another case, respondent turned to Ms. Reilly and asked whether she
believed what another defendant had said.
11.
Respondent ignored the concerns expressed by court
officers that Ms. Reilly's presence on the bench posed security problems.
12.
Respondent eventually re-sentenced Ms. Reilly on the
second charge to "time served" on the bench with him and waived the $40
mandatory surcharge.
13.
Respondent considers placing Ms. Reilly on the bench
"very appropriate," but would not do so again because of the consequent
criticism from court personnel and press coverage of the incident.
As to Charge II of the Formal Written Complaint:
14.
On January 5, 1984, respondent was sitting by designation
in the New York City Criminal Court.
15.
Stanley Green, a criminal trial lawyer, appeared in
respondent's court with a client.
16.
Mr. Green testified at the hearing before the Commission
that he had engaged quietly in a conversation with a court officer concerning the court
calendar when respondent loudly and angrily told him to sit down, then asked Mr. Green's
name and how long he had been practicing law and demanded that he face the audience and
apologize for his conduct.
17.
Respondent testified that Mr. Green had ignored several
requests by a court officer to be seated. Respondent
acknowledged that he asked Mr. Green's name and how long he had practiced law and asserted
that Mr. Green became argumentative. Respondent testified that he then directed Mr. Green
to face the audience and apologize.
18.
Mr. Green was embarrassed and shaken and faced the
audience and apologized as directed.
As to Charge III of the Formal Written Complaint:
19.
On January 4, 1984, respondent presided over People v. Joseph Pollock in the New York City Criminal
Court.
20.
Debra Porder represented the defendant.
21. Respondent directed Ms. Porder
to produce her client and ordered the case held for second call.
22.
Ms. Porder attempted to address respondent, and the
following colloquy took place:
THE COURT: Madam, I consider
it serious. This is--don't turn your back on me when I'm--
COUNSELLOR: I'm going to get my
client.
THE COURT: But allow me to
finish. There's something called common courtesy. I hope to extend
it to you. This is a criminal court and if you want to have a
perception of being a gangland lawyer, a mouth-piece for the mob,
then you come in and act that way. But I demand, I demand that you
conduct yourself ethically and with skill, and I will not have
defendants not appear. Do you understand? Go get your client.
COUNSELLOR: Your Honor, I meant no
disrespect.
THE COURT: Then I accept your
apology. I suggest in the future, in your anxiety, that you still
wait until someone is done speaking. Thank you very much.
*
*
*
As to Charge IV of the Formal Written Complaint:
23.
On January 4, 1984, Brad Friedman appeared before
respondent on a charge of Drinking an Alcoholic Beverage in Public.
24. Mr. Friedman, a 23-year-old
advertising agency employee, pled guilty to carrying beer on the street in an open
container.
25. Respondent then stated:
That particular beer has just cost you twenty-six dollars
and twenty cents. And let me tell you something.
Every time you do it, for every one of those six beers in that six-pack that
you're going to do in the future, and clearly you are, I wish I could be their big brother
that I could be there imposing twenty-six dollars and twenty cents on you. You know why?
'Cause you're a damn fool. You deserve
to pay twenty-six dollars each time you do this big macho beer drinking thing. Go over and pay your fine. If you don't pay it you spend two lovely evenings
in Rikers Island. You think it's funny, sir? I mean they'd love a juicy little white boy like
you. Go over and pay your fine. Twenty five dollars.
Upon the foregoing findings
of fact, the Commission concludes as a matter of law that respondent violated Sections
100.1, 100.2a, 100.3a2 and 100.3a3 of the Rules Governing Judicial Conduct and Canons 1,
2A, 3A2 and 3A3 of the Code of Judicial Conduct. Charges
I through IV of the Formal Written Complaint are sustained, and respondent's misconduct is
established. Respondent's motion is denied.
The established facts
indicate a pattern of misconduct in which respondent overreacted to what he perceived as
displays of disrespect for the court. His
responses were beyond the scope of his judicial authority and lacking in the dignity and
courtesy expected of every judge.
Whether or not respondent
correctly perceived that the lawyers and litigants before him were disrespectful should
not be at issue. The controlling factor is
that in each instance respondent's conduct, whatever may have provoked it, was
inappropriate, unprofessional and intemperate.
Respondent's decision to place a convicted prostitute on
the bench with him impaired, rather than enhanced, respect for the court. The judge's elevated station in the courtroom is
symbolic of authority and honor. Respondent
demeaned the court by sharing his post with a defendant, particularly one who, by
respondent's own account, had already demonstrated disrespect for the court. Respondent should have been aware of this when his
direction to seat her at the bench drew laughter in the courtroom. Instead, respondent still sees it as an
appropriate act, never to be repeated only because of the reaction it drew.
Respondent further encouraged disrespect for the court by
making an aside to the defendant concerning another case that came before him while she
was on the bench.
Respondent's humiliation of attorneys Stanley Green and
Debra Porder constituted an abuse of his power to maintain order and decorum in the
courtroom. Whatever the situation, it was
unnecessary to require Mr. Green to face the audience and apologize and to intimate that
Ms. Porder was unethical and a "mouth-piece for the mob" because she turned
around in the courtroom. Unfortunately,
respondent fails to perceive the impropriety of his conduct.
It was unjustified and inexcusable for respondent to
mention time in jail and graphically depict with racial overtones the brutal treatment
that might be received there by a defendant who had pled guilty of a minor violation. Respondent was without basis in concluding that
defendant Brad Friedman would engage in similar conduct in the future and in suggesting
that he would not pay his fine.
By reason of the foregoing, the Commission determines that
the appropriate sanction is censure.
Mr. Bower, Mr. Bromberg, Mr. Cleary, Mrs. DelBello, Judge
Ostrowski and Mr. Sheehy concur, except that Mr. Cleary dissents as to Charges II and III
only and votes that the charges be dismissed.
Mrs. Robb dissents as to
Charges I and II and votes that the charges be dismissed and dissents as to sanction and
votes that respondent be admonished.
Mr. Kovner dissents as
to Charges II and III and votes that the charges be dismissed and dissents as to sanction
and votes that respondent be admonished.
Judge Shea dissents as to Charges I and III and votes that
the charges be dismissed and dissents as to sanction and votes that respondent be
admonished.
Judge Rubin did not participate.
Dated: September
18, 1985
DISSENTING
OPINION BY MR. KOVNER
The remarks
which form the basis of Charges II and III do not constitute judicial misconduct
warranting public discipline.
The evidence
regarding the colloquy with Ms. Porder establishes that she turned her back on the Court
while respondent was addressing her. Respondent’s version of the events was
corroborated by two impartial witnesses and Ms. Porder neither complained nor testified at
the hearing. Most significantly, Ms. Porder
apologized and respondent promptly accepted her apology.
The language of the Court, while far from ideal, did not constitute
misconduct.
The criticism of
Mr. Green was more severe and respondent’s direction the Mr. Green turn to apologize
to those in Court was not appropriate. Nonetheless,
such isolated remarks in a busy overcrowded part do not warrant public discipline. As to these exchanges with counsel, I believe the
majority gave insufficient weight to the findings of fact by the distinguished Referee,
who noted:
My
very strong impression, after spending three
full days observing the Judge and hearing
him testify for several hours on direct
and cross, is that he is a compulsively
honest witness with a meticulous
regard for the facts.
I concur as to
Counts I and IV and believe admonition to be the appropriate sanction.
Dated: September 18, 1985
DISSENTING
OPINION BY JUDGE SHEA
The allegations
of Charge I, although proven, do not constitute misconduct.
The placing of Ms. Reilly on the bench beside him by respondent is an act
within a judge’s discretion. Although
reasonable people may reach differing conclusions as to its appropriateness, I do not
believe respondent’s action encouraged disrespect for the court.
Nor was there
misconduct or an abuse of power in respondent’s statements to Debra Porder. It is not the function of this Commission to
substitute its judgment for the words of a judge uttered in a busy courtroom. While judges must strive to be courteous, not
every departure from the ideal is misconduct. I
concur with the views expressed with regard to Charge III by the co-dissenter.
I agree with the
majority that Charge II and IV were sustained; respondent’s conduct was intemperate
and his statements humiliated an attorney in one case and a defendant in the other.
The appropriate
sanction is admonition.
Dated: September 18, 1985
