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Judge Faces Removal for Sending 46 Defendants to A Cell for Ringing On Their Cell [Phones]

Above all, we expect judges to behave with decorum and reason.  So what is it about small-time judges that makes some of them simply unable to adhere to the expected norms of judicial conduct?  Consider, the train wreck of decommissioned D.C. Administrative Law Judge Roy Pearson, who spent years pursuing a frivolous $65 million dollar lawsuit against a mom-and-pop dry cleaning business.  Or, the snivelling buffoon Judge Larry Seidlin, who shamelessly played to the cameras in the high-profile fight over where to bury Anna Nicole Smith

Well, now there's  Niagara Falls City Court Judge Robert Restaino, who sent 46 defendants in domestic violence cases to jail after a cell phone (yes, a cell phone, not a gun, not a bomb, but a cell phone) went off in Restaino's court room.  As this piece from the New York Law Journal reports, on the morning of March 11, 2005, Restaino was presiding over a slate of domestic violence cases when he heard the cell phone ring.  When the owner of the phone failed to identify himself and turn over the phone, Restaino advised that  “every single person is going to jail in this courtroom."  And true to his word, Restaino committed 46 defendants to custody. (For further detail on the incident, see the Report of the Commission on Judicial Conduct.)

Not surprisingly, a complaint was filed against the judge for his action.  And earlier this month, the Commission on Judicial Conduct recommended removal of the judge from the bench.  Here's how the Commission characterized the judge's conduct:

In an egregious and unprecedented abuse of judicial power, respondent committed 46 defendants into police custody in a bizarre, unsuccessful effort to discover the owner of a ringing cell phone in the courtroom.  In doing so, he inexplicably persisted in his conduct over some two hours, questioning the defendants individually about the phone before committing them into custody, and ignoring the pleas of numerous defendants who protested that his conduct was unfair and pleaded that he reconsider.  Respondent’s conduct, which resulted in the unjustified detention of the defendants for several hours and the incarceration of 14 defendants in the County Jail, caused irreparable damage to public confidence in the fair and proper administration of justice in his court....
It is sad and ironic that even as respondent was scolding the defendants for their behavior, in a court where trust and personal accountability were of paramount importance, respondent’s own irresponsible behavior provided a poor example of such attributes.  His conduct was injurious not only to the defendants themselves, but to the public as a whole, who expect every judge to act in a manner that reflects respect for the law the judge is duty-bound to administer.  It is also ironic that in repeatedly berating the “selfish” and “self-absorbed” individual who “put their interests above everybody else’s” and “[doesn’t] care what happens to anybody,” respondent failed to recognize that he was describing himself.

In light of the circumstances, the Commission found no mitigating circumstances that would excuse the conduct, and recommended removal of Restaino from the bench.

Raoul Felder, chair of the Commission, dissented as to the sanction.  In essence, he concluded that "one bizarre incident" of misconduct did not justify the destruction of Restaino's career.  According to Felder's dissent, the judge was a "decent, humble dedicated individual who is well-liked and respected" and who "built an exemplary career in public service" after growing up in public housing. 

Personally, I don't agree with Felder.  Here, the judge's conduct caused harm to defendants who unjustly spent time in jail because they showed up in court as required by law.  I can't even imagine the chilling effect that Restaino's conduct will have on other defendants, who are already squeamish or fearful about showing up for court.  Still, Felder's dissent must be viewed in context; apparently, the Commission's only choices are censure or removal.  As Felder explained:

I would have preferred to vote for a more serious penalty than censure, but a lesser one than removal; however, none is available.  This speaks for the value of the Commission having the ability to vote to suspend a judge without pay, as a penalty that would be in severity between censure and removal.  In my view this case would have easily fallen into such a category.

Some other bloggers have weighed in with their views.  TChris on Talk Left says:

A judge who thinks mass jailings are the best way to respond to his own irritation -- without probable cause or even an individualized suspicion that each of the 46 detainees had done something wrong -- deserves to lose his job. Thankfully, Restaino lost his.

And Scott Greenfield offers some background on Chairman Felder, who apparently harbors a soft spot for judges who engage in misconduct.

But getting back to my original question:  are small-time judges more likely to abuse their power than those who play in the big leagues, such as those who sit on federal courts?  And if so, why?

Posted by Carolyn Elefant on November 28, 2007 at 02:11 PM | Permalink | Comments (1)


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