Prosecuting judges for ethical violations: are criminal sanctions constitutional and prudent, or do they constitute a threat to judicial independence?

• Author: Abramovsky, Abraham

1. INTRODUCTION

   On April 29, 2004, the Kings County Supreme Court made legal history by dismissing eight counts of an indictment against then-Justice Gerald Garson. (1) In six of these counts, Justice Garson was accused of receiving reward for official misconduct under Section 200.25 of the New York Penal Law, in that he allegedly obtained or agreed to obtain a benefit in return for violating his duty as a public servant. (2) This is hardly an unusual charge to be leveled against an allegedly corrupt public official, but in Justice Garson's case, the "duty" he was accused of violating was based purely upon the New York State Code of Judicial Ethics. Specifically, it was alleged that Justice Garson acted criminally by conducting improper ex parte communications and by accepting fees for referring unrelated cases to a private attorney. (3)

   This was only the second time in New York, and the fourth time anywhere in the United States, (4) that a judge was prosecuted for violating ethical strictures that were not explicitly forbidden by a penal statute. In all three previous cases, the appellate courts held that such attempts were improper, characterizing them as violations of the principles of separation of powers and judicial independence. (5) In the Garson case, however, the Kings County District Attorney was ready to try again, claiming that a 1977 amendment to the New York State Constitution explicitly incorporated the ethical rules into the duties of a judge. (6)

   The Kings County Supreme Court rejected this argument, holding that the considerations of judicial independence, separation of powers, and constitutional vagueness that informed the previous cases were still valid. (7) This decision was affirmed by the Second Department of the Appellate Division, (8) but leave to appeal was granted by the New York Court of Appeals. (9) If the highest court in New York upholds the arguments of the District Attorney's office, it will mark a dramatic shift of power from judges to prosecutors, with local prosecutorial agencies having the ability to selectively pursue indictments against judges for violations of broadly-worded ethical rules. Moreover, by shifting judicial disciplinary authority toward the District Attorney's office, it would undermine separation of powers as well as the role of disciplinary boards in regulating the American judiciary.

   Accordingly, this Article will examine the constitutional and practical issues surrounding prosecutions of judges for ethical violations. The first part of this Article will focus on the Garson prosecution as an example of unwarranted prosecution of judges for violation of ethical codes. The second part will examine cases elsewhere in the United States in which judges and other public officials have been prosecuted for violations of ethical codes. This part will also analyze the manner in which the courts have dealt with considerations of constitutional vagueness, judicial independence, separation of powers, and the potential for vindictive prosecutions. Finally, the third part will discuss the threats to judicial independence that exist even under the current American legal framework, as well as the growing tendency to blur the line between civil and criminal liability. The Article will conclude that these factors, in combination with the fact that the code of judicial ethics was never intended to be a basis for criminal liability, militate against the use of such codes to define offenses under New York law.

   H. THE GARSON PROSECUTION

   The investigation of Kings County Supreme Court Justice Gerald Garson was a product of an ongoing probe into corruption in the Brooklyn courts. On January 24, 2002, Justice Victor I. Barron was indicted on charges of demanding a $115,000 bribe to approve a settlement in favor of an infant. (10) The indictment, which was the result of a two-year investigation, opened a Pandora's box of charges against other Brooklyn judges. Within two months of the indictment, no fewer than eight judges in Kings County were under investigation for activities ranging from nepotism, patronage, and outright bribe-receiving, to moonlighting as private counsel. (11) A twenty-nine member commission headed by Professor John D. Feerick of Fordham Law School was empaneled to recommend reforms to enhance judicial ethics throughout the state. (12) On February 8, 2002, Justice Ann T. Pfau, a long-time official in the New York Office of Court Administration and a key assistant to Chief Administrative Judge Jonathan Lippman, was appointed administrative judge in Kings County Supreme Court with a mandate to clean up an alleged culture of corruption. (13) Her appointment led to additional internal probes of judges, private attorneys, and Brooklyn public officials with ties to the courts. (14)

   It was during this period that Frieda Hanimov, a matrimonial litigant in Brooklyn, became dissatisfied with her treatment by Justice Garson. Hanimov, whose matrimonial action was pending in front of Justice Garson, had lost custody of her children to her husband. She was then allegedly told by her attorney, Paul Siminovsky, that she had lost the case because her husband had bribed the judge, and that she could obtain a more favorable ruling if she made a better offer. Siminovsky introduced her to Nissim Elmann, a Brooklyn businessman who was allegedly able to influence Garson by bribing him.

   At that point, Hanimov contacted the Kings County District Attorney and became, in her words, an "undercover mom." (15) In cooperation with the District Attorney's office, she conducted a number of consensual recordings of conversations with Elmann and Siminovsky. These recordings focused the District Attorney's investigation on an alleged conspiracy in which Elmann, Siminovsky, Justice Garson, and his clerk Paul Sarnell gave favorable matrimonial rulings in return for bribes.

   As a result of information provided by Hanimov, the District Attorney's office obtained permission to conduct electronic surveillance and video recording in Judge Garson's robing room. (16) A number of conversations between Garson and Siminovsky were recorded, but none of them yielded evidence of bribery. (17) Instead, they yielded evidence of certain ethical improprieties, including improper ex parte conversations and acceptance of referral fees for referring unrelated cases to Siminovsky. (18) In addition, the monitoring of Justice Garson's robing room and wiretaps on Siminovsky's and Elmann's cell phones revealed that Siminovsky frequently treated Garson to meals and drinks, although there was no evidence that these meals were exchanged for any judicial favors. (19)

   On February 24, 2003, Siminovsky was arrested, following which he agreed to cooperate with the prosecution and was debriefed. (20) At that time, he stated that he had obtained favorable treatment in return for benefits, but was unable to provide specific instances. (21) He did, though, make allegations that would form the basis of later charges against Judge Garson, stating that he had provided the judge with meals and drinks in exchange for ex parte advice and that he had given the judge fees for referring matrimonial clients to him. (22) Justice Garson, however, did not preside over any of the cases he referred to Siminovsky. (23) Therefore, the referral fees constituted private transactions between attorneys rather than transactions made in return for favorable judicial treatment of Siminovsky's clients. (24)

   At the time of his debriefing, Siminovsky also agreed to have his conversations recorded. Pursuant to this agreement, prosecutors recorded him engaging in ex parte discussions with the judge. (25) In addition, he was recorded via video surveillance placing a box of cigars in Justice Garson's desk. (26)

   Shortly thereafter, the Kings County District Attorney's office obtained an indictment charging Justice Garson with several counts of official misconduct, (27) receiving reward for official misconduct, (28) and receiving unlawful gratuities. (29) This indictment was later withdrawn in substantial part and superseded by another indictment. (30) The top count of the second indictment was bribe-receiving in the third degree, (31) a Class D felony punishable by up to seven years' incarceration, predicated upon Justice Garson's receipt of cigars from Siminovsky. (32) The precedent-setting aspect of the indictment, however, lay in the six counts of receiving reward for official misconduct. Of these, five were predicated upon Justice Garson's alleged receipt of referral fees, and the sixth was grounded upon the alleged receipt of benefits for conferring ex parte advice. (33)

   Under New York law, the offense of receiving reward for official misconduct is committed when a public servant "solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant." (34) As the prosecution acknowledged, there was no statute, in the Penal Law, Judiciary Law, or elsewhere, defining receipt of private referral fees or conferral of ex parte advice as a violation of a judge's duties as a public servant. (35) Instead, the prosecution contended that the duties of a judge, for purposes of the official misconduct statute, could also be defined by the ethical rules promulgated by the Chief Administrator of the Courts. (36) Specifically, the prosecution contended that the New York code of judicial conduct prohibited both the rendering of ex parte advice (37) and the lending of the prestige of judicial office for private purposes, (38) and that violations of these prohibitions in exchange for a benefit could be punished under the Penal Law. (39)

   Justice Garson's attorneys sought dismissal of these charges through several procedural devices. These included a plenary action for prohibition under Article 78 of the Civil Practice Law and Rules and a pretrial omnibus motion in the Kings County Supreme Court. (40) In making these...