Refusal to Apologize Costs Judical Watchdog 6 Months

Tom Perrotta
New York Law Journal
07-08-2004

A Washington, D.C., judge had nearly finished reciting the elaborate terms of Elena Sassower's two-year probation for disrupting Congress: She would stay away from the Capitol, avoid various senators, perform community service, pay $750 in fines and undergo anger management therapy.

"Finally," D.C. Superior Court Judge Brian F. Holeman said last week, "letters of apology."

This Ms. Sassower could not do.

"I am not remorseful, and I will not lie," she said.

Judge Holeman continued, saying that copies of the letters - for senators Hillary Clinton, Charles E. Schumer, Orrin G. Hatch and Saxby Chambliss and for Judge Richard C. Wesley of the U.S. Court of Appeals for the Second Circuit - should also be sent to him.

"They will not be sent because they will not be written," Ms. Sassower said.

"Be quiet," the judge said. "Any effort to communicate additional information will constitute a violation of your probation."

And finally: "Ms. Sassower, the answer is yes or no. Do you accept the conditions of your probation?"

"No."

At that, Judge Holeman sentenced Ms. Sassower, 48, to 6 months in jail, the maximum for her misdemeanor conviction. Neither prosecutors nor the Court Services and Offender Supervision Agency, which handles presentence reports in Washington had recommended jail time.

"It's outrageous and unprecedented," said Mark Goldstone, the D.C. attorney who advised Ms. Sassower on her pro se defense. "It's totally uncalled for."

Mr. Goldstone is seeking a stay of the sentence from an appeals court as Ms. Sassower sits in D.C. Jail, which Mr. Goldstone described as "at the more unsafe end of the spectrum."

Federal prosecutors who handled Ms. Sassower's case this week filed papers opposing Mr. Goldstone's motion.

It is the first such sentence for Ms Sassower, a longtime critic of the New York judicial system.

As the co-founder of the Center for Judicial Accountability in White Plains, she has testified - or attempted to testify - at hearings to confirm numerous state judges. She has made speeches and written letters against the state Commission on Judicial Conduct, the state attorney general and the press. She has delivered countless documents outlining judicial corruption to all who will read them, and many who will not.

The Washington incident that led to her prison term happened in May 2003. Ms. Sassower was arrested after a Senate Judiciary Committee confirmation hearing for Judge Wesley, a New York Court of Appeals judge nominated for the federal bench.

In the days before the hearing, she had approached senators Schumer and Clinton, both Democrats from New York, about her objections to the judge, whom she considered unfit. At one point, she left a message for Senator Clinton's office and received a call from a Capitol Police officer, who told her to stay away from the judge's hearing.

Ms. Sassower went to the hearing anyway and remained quiet through the two-hour proceeding until Senator Chambliss, a Republican from Georgia, began to adjourn.

She asked if she could testify, was quickly arrested, removed from the building and charged with disrupting Congress. After a one week trial in which she often had conflicts with Judge Holeman, Ms. Sassower was convicted by a jury.

The sparring between defendant and judge continued at Ms. Sassower's sentencing, when she asked Judge Holeman if she could have several boxes of documents - which she said were "corroborative of my innocence" - present in the courtroom during the proceeding.

"This stack of documents is so - I mean, you've got so many documents that it serves no purpose, except to disrupt this Court," the judge said.

The judge asked Ms. Sassower to be quiet and told her not to interrupt him. He concluded the hearing by saying: "Ms. Sassower, once again, your pride has gotten in the way of what could have been a beneficial circumstance for you. This incarceration begins forthwith. Step her back."

Mr. Goldstone, an expert in civil disobedience cases, said he has never seen a sentence of this magnitude for such a small infraction. But he admits that Ms. Sassower does herself no favors with her relentless approach.

"She's very challenging," he said. When she discovered that her pre-sentence report contained factual errors, he said, she wrote a 37-page document to correct it. "And I'm like, you're killing yourself."

Still, Mr. Goldstone said, Ms. Sassower is an important advocate who is being treated unfairly.

"In my view, there is a lot more good than bad," he said.

Mr. Goldstone said that in the last 20 years, he can recall only one jail sentence given to a defendant like Ms. Sassower. It happened in 1989 when members of the organization Refuse and Resist received four days in jail after speaking out for abortion rights during a U.S. Supreme Court session.

"That was the only example in 20 years - literally thousands and thousands of arrests - of jail time," he said. "Judges shouldn't be making decisions based on frustration."

Ms. Sassower subpoenaed senators Schumer and Clinton at her trial, but her requests were quashed. Neither senator returned a call seeking comment on Ms. Sassower's sentence. Judge Wesley, through a clerk, declined to comment.

New York state Senator John DeFrancisco, who as chairman of the Senate Judiciary Committee is familiar with Ms. Sassower, said her sentence might be too harsh, but he could understand why a judge might impose it.

"I think it is highly unusual, but I think it is also highly unusual when a judge is leaning toward community service for a person to challenge a judge," said Mr. DeFrancisco, a Republican from Syracuse. "It got to the point when she finally challenged the wrong person."

When Mr. DeFrancisco was just a member of the committee and not its chairman, he said, Ms. Sassower tried to testify at confirmation hearings but was never allowed to. When he became chairman, he said, he wanted to give her a chance.

"She came with boxes and boxes of material on a dolly," he said. "When she refused to stop talking on irrelevant, immaterial issues, I told her we would have to cut her off."

- Tom Perrotta can be reached at tperrotta@amlaw.com.