When judges don't judge
by Richard Barbuto
First of all, let me be clear about this: there are many good and decent people who are fine judges. Okay? So no comments please about how I am suggesting that all judges are terrible. This blog is about judges who either don't like to make decisions or when making decisions always take the easy way out. In fact, I am going to use real cases where I was a participant so I actually know what went on.
The first case took place in Bronx County shortly after the events of 9/11. During that tumultuous time many cops who were witnesses in criminal trials were busy working on 9/11 related matters. The then-governor of New York decided it would be a good idea to suspend the "speedy trial" law so that defendants awaiting trial (and therefore, not having been found guilty of anything) could not get out of jail on speedy trial grounds. I must digress for a moment. With many exceptions, New York defendants are to be brought to trial within 6 months or their case will be dismissed. If prosecution witnesses are not available prosecutors cannot try their cases and therefore run the risk of not getting defendants to trial in 6 months. Hence, the governor's suspension of speedy trial law. Most people thought this was a good idea. After all, if you get arrested you must be guilty of something. More importantly, working on 9/11 matters was paramount. Prosecutors loved this. All they had to do was march into court and proclaim that their police witnesses were unavailable due to 9/11 duties.
At the time I was representing a man charged with a crime that carried a penalty of 25 years and his bail was not something he was ever going to make. When the case was to be tried, the witnesses were unavailable due to 9/11 duties. I decided to craft a motion not attacking the suspension of the speedy trial law but one designed to compel the prosecution to prove that the witnesses were actually working on 9/11 matters. The case was plead out with a favorable disposition to my client. I asked the judge how he would have decided the motion. His response was something to the effect of that it was a good motion but he never would have decided it in favor of my client. He would have "kicked it upstairs to the appellate division" and let them deal with it. Way to go judge!
In a case in Long Island in NY a defendant was indicted for murder but under 2 very different theories, one for intentional murder and one for depraved indifference (reckless) murder. Before there was a trial a judge dismissed the reckless murder saying the murder could not be both reckless and intentional but only one or the other. Now the perfect screw-up began.
The prosecutor failed to note the judge's decision on his file. The court clerk noted the decision on the court file but in the wrong place. The defense lawyer apparently did not put a copy of the decision in his folder. The case was then transferred to another prosecutor. Both the judge and the defense lawyer retired so the case naturally was picked up by another judge and defense lawyer. When the case came to trial no one noticed that one murder count had been dismissed. You know what is coming here. The defendant was convicted on a previously dismissed count. Moreover, because he was convicted of that count the other murder count was automatically dismissed. This all came to light when an alert data entry person brought it to the attention of the district attorney's office before sentencing.
By this time it was very clear that there had been a massive muckup by everybody involved. Life being what it is, however, no one admitted to any fault and the prosecutor fought to keep a conviction to a non-existent count in place and the judge went along with it. The judge was not going to be the one that vacated a murder conviction. Nope. Not him. He went right ahead and sentenced the defendant to 25 years to life on the murder.
I wound up doing the defendant's appeal and ultimately the murder conviction was vacated. The point is that the judge had to know there would be a reversal. He just wasn't going to do it.
One does not have to like the final results of either of these cases. In fact, I chose them because the results will be troubling to some people. My point is that judges are supposed to make decisions based on the law not on their personal likes or dislikes. Furthemore, defendants should expect that when mistakes are made that judges will fix them, not exacerbate them.
The first case took place in Bronx County shortly after the events of 9/11. During that tumultuous time many cops who were witnesses in criminal trials were busy working on 9/11 related matters. The then-governor of New York decided it would be a good idea to suspend the "speedy trial" law so that defendants awaiting trial (and therefore, not having been found guilty of anything) could not get out of jail on speedy trial grounds. I must digress for a moment. With many exceptions, New York defendants are to be brought to trial within 6 months or their case will be dismissed. If prosecution witnesses are not available prosecutors cannot try their cases and therefore run the risk of not getting defendants to trial in 6 months. Hence, the governor's suspension of speedy trial law. Most people thought this was a good idea. After all, if you get arrested you must be guilty of something. More importantly, working on 9/11 matters was paramount. Prosecutors loved this. All they had to do was march into court and proclaim that their police witnesses were unavailable due to 9/11 duties.
At the time I was representing a man charged with a crime that carried a penalty of 25 years and his bail was not something he was ever going to make. When the case was to be tried, the witnesses were unavailable due to 9/11 duties. I decided to craft a motion not attacking the suspension of the speedy trial law but one designed to compel the prosecution to prove that the witnesses were actually working on 9/11 matters. The case was plead out with a favorable disposition to my client. I asked the judge how he would have decided the motion. His response was something to the effect of that it was a good motion but he never would have decided it in favor of my client. He would have "kicked it upstairs to the appellate division" and let them deal with it. Way to go judge!
In a case in Long Island in NY a defendant was indicted for murder but under 2 very different theories, one for intentional murder and one for depraved indifference (reckless) murder. Before there was a trial a judge dismissed the reckless murder saying the murder could not be both reckless and intentional but only one or the other. Now the perfect screw-up began.
The prosecutor failed to note the judge's decision on his file. The court clerk noted the decision on the court file but in the wrong place. The defense lawyer apparently did not put a copy of the decision in his folder. The case was then transferred to another prosecutor. Both the judge and the defense lawyer retired so the case naturally was picked up by another judge and defense lawyer. When the case came to trial no one noticed that one murder count had been dismissed. You know what is coming here. The defendant was convicted on a previously dismissed count. Moreover, because he was convicted of that count the other murder count was automatically dismissed. This all came to light when an alert data entry person brought it to the attention of the district attorney's office before sentencing.
By this time it was very clear that there had been a massive muckup by everybody involved. Life being what it is, however, no one admitted to any fault and the prosecutor fought to keep a conviction to a non-existent count in place and the judge went along with it. The judge was not going to be the one that vacated a murder conviction. Nope. Not him. He went right ahead and sentenced the defendant to 25 years to life on the murder.
I wound up doing the defendant's appeal and ultimately the murder conviction was vacated. The point is that the judge had to know there would be a reversal. He just wasn't going to do it.
One does not have to like the final results of either of these cases. In fact, I chose them because the results will be troubling to some people. My point is that judges are supposed to make decisions based on the law not on their personal likes or dislikes. Furthemore, defendants should expect that when mistakes are made that judges will fix them, not exacerbate them.
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