N.Y. Judge Who Helped Robbery Suspect Evade Arrest Is Removed
John Caher
New York Law Journal
06-15-2006

A divided New York Court of Appeals on Tuesday removed Queens Supreme Court Justice Laura D. Blackburne for helping a robbery suspect evade arrest.

The 5-2 ruling marked a rare and possibly unprecedented case where the court decided that a judge who had no prior disciplinary record, and had committed misconduct that did not involve personal profit, venality, a breach of trust or moral turpitude, is unfit for the bench.

Tuesday's ruling in Matter of Blackburne, 70, made clear that judicial misconduct cases require case-by-case analysis, and that the court retains the discretion to fashion an appropriate sanction to unique cases, no matter what it has decided in other matters.

Here, Blackburne claimed that the court had never removed a judge for a single, seemingly aberrational act of misconduct where there was no personal gain or evidence of venality. But the majority, in a per curiam opinion, essentially responded that it did not matter.

"[W]e have never implied that removal is limited to those categories of cases that have formerly come before us," the court said. "Judicial misconduct cases are, by their very nature, sui generis. That until now no judge has thought to prevent the lawful arrest of a suspected felon cannot shield petitioner from the necessary consequences of her actions."

A two-judge dissent led by Judge George Bundy Smith and joined by Judge Robert S. Smith argued that Blackburne -- who was ridiculed by the New York City tabloids and condemned by public figures such as Governor George E. Pataki and Mayor Michael Bloomberg -- is being treated much more harshly than other jurists.

They referred to the "glaring" disparity in sanctions and expressed concern that the court was breaking with its precedents and determinations of the Commission on Judicial Conduct by removing a judge for a single incident of poor judgment.

"No good reason exists to remove from the bench an outstanding jurist who has made one error in judgment," Bundy Smith wrote. "While it is true that judges should set high standards, it is also true that judges are human and may err. An error in judgment by this judge, approximately two years from retirement, should not lead to dismissal."

The dissent referred to the lengthy list of amici supporting Blackburne. On that list are appellate justices, political leaders and several organizations, including the Association of Justices of the Supreme Court, the Association of Black Women Attorneys and the National Association for the Advancement of Colored People. The NAACP had claimed that Blackburne was the target of right-wing extremists and that her removal would perpetuate the perception that blacks are held to a different standard than whites.

Blackburne's removal is rooted in an incident two years ago, when she was presiding over the Queens Treatment Court where defendant Derek Sterling appeared. Sterling was undergoing court-ordered treatment at a residential drug treatment program.

That June morning, New York City Detective Leonard Devlin appeared at Blackburne's court and advised the court officer that he wanted to question Sterling in connection with a robbery. Devlin waited outside the courtroom and made no attempt to accost the suspect in the courtroom. He waited for the proceeding before Blackburne to conclude.

Meanwhile, the court officer, Sergeant Richard Peterson, informed the judge that Devlin was present and wanted to question Sterling. Blackburne later realized that the detective sought not only to question Sterling, but to arrest him.

Outraged at what she viewed as a "ruse," Blackburne directed Peterson to show Sterling out a secure rear exit to evade the police officer.

Peterson, worried that he would get in trouble if he disregarded Blackburne's directive and fearing that he would be guilty of obstructing justice if he did what she told him, consulted with an assistant district attorney. The prosecutor, Sharon Scott Brooking, agreed it would be inappropriate to help the suspect evade arrest, and so advised both Peterson and Blackburne.

But Blackburne insisted and said that if Peterson did not take Sterling out the back stairwell, she would do so herself.

The court officer, concerned at that point for the judge's safety, reluctantly showed Sterling out.

Sterling was arrested the next day at his drug treatment program and charged with assault and robbery, charges that were ultimately dismissed.

The New York City tabloids had a field day with the incident, denouncing Blackburne as "Let -'Em-Go-Laura" and "Loony Laura" and describing her as a "judicial jerk."

She also was harshly criticized by local and state political leaders.

The Police Benevolent Association, the Detectives Endowment Association and Mayor Bloomberg, through Deputy Mayor for Legal Affairs Carol Robles-Roman, complained to the Commission on Judicial Conduct, which initiated an investigation.

GUILTY OF MISCONDUCT

Following that investigation and a hearing before a referee, former Appellate Division Justice Ernst H. Rosenberger, Blackburne was found guilty of misconduct. The commission then voted 8-2 for removal, with the dissenters contending that censure is a more appropriate penalty for a first-time offense.

On appeal, the sole issue was whether the misconduct in this case was so serious as to warrant the harshest available penalty. For the majority, it seemingly was not a close call.

The majority described Blackburne's conduct as "rash and reckless," and said the judge showed no concern and no respect for the public safety, or, for that matter, for the potential legal predicament in which she was placing Peterson. It said the fact that Sterling returned peacefully to the drug program and apparently did not commit the robbery/assault is of no relevance.

"Things might easily have turned out otherwise," the majority said. "In impeding the legitimate operation of law enforcement by helping a wanted robbery suspect avoid arrest, petitioner placed herself above the law she was sworn to administer, thereby bringing the judiciary into disrepute and undermining public confidence in the integrity and impartiality of her court. [P]etitioner's dangerous actions exceeded all measure of acceptable judicial conduct."

The majority said Blackburne "abandoned her role as a neutral arbiter, and instead became an adversary of the police," a position "completely incompatible with the proper role of an impartial judge."

Judges Bundy Smith and Robert Smith, in dissent, referred to a dozen commission cases in suggesting that Blackburne is being treated more harshly than other jurists who committed equally offensive and even more egregious misconduct, and as harshly as judges whose misconduct was considerably more serious than hers.

"Over the years, this Court and the Commission have removed a number of persons from the bench," the dissenters said. "Not until this case, however, has a judge been removed for one act of bad judgment."

Robert H. Tembeckjian, commission administrator and counsel, said Tuesday that while it is always an "unpleasant and difficult duty to remove a judge from office," he is gratified that the Court of Appeals agreed that removal is the proper sanction here.

'UNFAIR' RULING

Blackburne's attorney, David Godosky of Godosky & Gentile in Manhattan, said the ruling was "unfair and unduly harsh."

"The Court has chosen to ignore its precedents and impose the ultimate sanction on this jurist," Godosky said. "I do think it is unfair to Judge Blackburne because of what was demonstrated to be a rather exemplary 10-year, unblemished career. She did make an error, which she admitted to almost immediately, and has expressed her remorse. To impose this sanction given those factors, given her history, given her career and the character testimony at her hearing is an unfair and unduly harsh result."

In a statement Tuesday, police union president Patrick J. Lynch described Blackburne as a "notorious cop-hater" whose removal by the court amounts to a public service.

"The Patrolmen's Benevolent Association and its 50,000 active and retired members salute the ... Court of Appeals for this courageous decision," Lynch said. "As a judge, Laura Blackburne was a blemish on the outstanding record of service provided to this city by all those who serve on the bench with honor and dignity."

Michael Marr, a spokesman for the governor, said the administration "is pleased that the Court of Appeals has recognized that a judge who assists a suspected felon in avoiding a lawful arrest exceeds all bounds of acceptable judicial conduct and must be removed from office."

Tuesday's ruling has no impact on Blackburne's pension, except to the extent that she will have fewer years of service. She was within two years of retirement. She had been suspended with pay pending the court's consideration of her case.

Queens Judge Removed

LINK

QUEENS---In a 5-2 decision, the state's highest court has upheld the determination of the state Commission on Judicial Conduct to remove Queens Supreme Court Justice Laura D. Blackburne from office for directing a court officer to escort a defendant out of the courthouse through the judge's private entrance in order to elude a detective who was waiting to arrest the defendant.

The judicial panel had voted 8-2 last year to remove Blackburne from the bench for the June 2004 incident. Blackburne didn't dispute the nature of the misconduct but did oppose the sanction, arguing that her "error in judgment" did not merit removal but rather a censure.

Two judges on the Court of Appeals, George Bundy Smith and Robert Smith, agreed with her and said that while her actions were a mistake, the incident did not merit removal.

"While it is true that judges should set high standards, it is also true that judges are human and may err," Bundy Smith wrote. "An error in judgment by this judge, approximately two years from retirement, should not lead to removal."

Blackburne, 67, has been a Supreme Court Judge since 2000 and prior to that, from 1996 to 1999, served as a judge of Civil Court of the City of New York. She is only the fifth Supreme Court justice to be removed since the commission's formation in 1978.

In their determination, the commission found that she had acted out of anger, claiming that the detective had come to court under "ruse" of wanting to question the defendant when he actually intended to arrest him. In its majority ruling the commission found that the judge had "placed herself about the law she is sworn to uphold and abused the power of her office". In imposing the sanction of removal, the commission stated that the judge's conduct "transcended the boundaries of acceptable judicial behavior".
http://www.scjc.state.ny.us/Determinations/B/blackburne.htm

The Court of Appeals found that Blackburne had "placed herself above the law she was sworn to administer, thereby bringing the judiciary into disrepute and undermining public confidence in the integrity and impartiality of her court". "By interposing herself between the defendant and the detective, (Blackburne) abandoned her role as a neutral arbiter, and instead became an adversary of the police," the court said. "This is completely incompatible with the proper role of an impartial judge."

She has a long history of public service, having served as chair of the New York City Housing Authority and as pro bono counsel for the NAACP. She resigned as chair of the housing authority in 1992 after it was alleged she spent thousands of tax dollars for overseas business trips and for redecorating her office with items including a $3,000 pink leather couch.
6-13-06

© 2006 North Country Gazette

N.Y. High Court Considers Removing Judge for Helping Robbery Suspect Evade Police
John Caher, New York Law Journal
05-05-2006

Should a single, aberrational act of misconduct that reflects woefully poor judgment but no venality subject an otherwise respected judge to expulsion from the judiciary?

That is apparently the central question as the New York Court of Appeals weighs whether to remove Queens Supreme Court Justice Laura D. Blackburne for helping a robbery suspect evade police.

During oral argument Tuesday in Matter of Blackburne v. State Commission on Judicial Conduct, 70, the judges returned repeatedly to the core theme of David M. Godosky's argument: that the court has never before removed a contrite judge for a single error when the judge received no benefit for his or her misconduct.

Godosky, of Godosky & Gentile in Manhattan, told a seemingly receptive court that if it upholds the Commission on Judicial Conduct and orders Blackburne removed from the bench, it would mark an unprecedented and unduly harsh application of the Code of Judicial Conduct.

The commission's attorney, Robert H. Tembeckjian, agreed that Blackburne's record was previously unblemished, that she in no way profited from her mistake and that shortly after helping the suspect escape she owned up to the error and apologized. But, he said, some judicial misconduct cases are so egregious and so negatively impact the public perception of the judiciary that nothing less than removal will do. This is such a case, he said.

Matter of Blackburne is rooted in a widely publicized incident on June 10, 2004, when Blackburne encouraged a drug court defendant to escape through a private stairway so he could avoid a police detective waiting to arrest him on robbery and assault charges.

Blackburne has said she was concerned that an arrest at her drug court would undermine the program and lead to an impression that judges were in cahoots with prosecutors.

The record indicates that she initially thought the detective simply wanted to question Derek Sterling as a witness, but then learned he intended to arrest the suspect.

Blackburne has said she thought the detective was trying to mislead her -- although she never spoke to him -- and reacted inappropriately out of anger.

Both a court officer and an assistant district attorney strongly urged Blackburne, who placed the entire transaction on the record, not to let Sterling go. She failed to heed that advice, despite having at least a couple of hours to think it over, and had a court officer worried that he was obstructing justice show Sterling out the back way.

Sterling was caught the next day and arrested on charges that were later dismissed.

Several public officials, including Governor George E. Pataki and Mayor Michael R. Bloomberg, criticized Blackburne. The tabloids denounced her as "Let-'Em-Go-Laura," "Loony Laura," and a "judicial jerk."

The Commission on Judicial Conduct voted 8-2 for her removal, with the dissenters arguing that censure is more appropriate for a first-time offense.

On Tuesday, the argument focused not on whether Blackburne committed misconduct, but on the sanction.

Godosky made little attempt to excuse or rationalize Blackburne's behavior and urged the Court to censure rather than remove his client.

NAACP BRIEF

He also distanced himself from and all but disavowed an amicus curiae brief submitted by the National Association for the Advancement of Colored People.

The NAACP brief, submitted by a lawyer in Chicago, portrays Blackburne as the victim of right-wing extremists and argues that removing Blackburne, who is black, would fuel suspicions that black judges are held to a more demanding standard than other judges.

In response to a question from Judge Carmen Beauchamp Ciparick, Godosky said he does not share the group's characterizations of the case.

"She made an error, an error in judgment and a mistake," he said. "Nevertheless, the record is clear, and the commission agrees, that that act of misconduct, that the mistake, was not venal or for a selfish purpose."

The initial questioning of Godosky centered on whether there is any precedent for removing a judge who committed a single act of misconduct without profit. With the case law on his side, Godosky seemed off to a good start. But he was quickly challenged by Ciparick and Judge Robert S. Smith.

Ciparick noted that Blackburne was counseled and advised not to let Sterling go, an indication that her decision was not a rash, spur-of-the-moment action.

Smith questioned the fitness of any judge who does not already know that helping a suspect evade police is highly inappropriate.

"Shouldn't a judge know intuitively that if you are a judge you don't send someone the police are looking for out the back door?" he asked. "Isn't that common sense?"

Smith said it was solely a matter of luck that Sterling did not flee the jurisdiction or, worse, commit another crime after he was released.

"Do you get the sense that she appreciates that this was not just a mistake, but this was way off the rails?" Smith asked.

Godosky said the record is "replete" with Blackburne's sincere expressions of remorse.

"She cannot imagine doing this again in her worst nightmare," he said. "She certainly understands the gravity of what she did."

Godosky referred to amici briefs submitted on Blackburne's behalf by the Queens County Bar Association, the Association of Black Women Attorneys, Queens Law Associates, the Latino Lawyers Association and the Association of Supreme Court Justices. He said those briefs reflect Blackburne's continuing credibility among both the bench and bar. That prompted Ciparick to ask about the NAACP brief.

"One of the amici discusses the possibility of political pressure on the commission," Ciparick said. "Do you espouse to that?"

"I do not, your honor," Godosky responded. "I would say the reason I think something like that gets filed is it attempts to demonstrate there is a significant part of the community that is very upset and angry and outraged by the commission's determination."

'BEYOND THE PALE'

Tembeckjian argued that Blackburne's misconduct was so "beyond the pale" that no sanction short of removal, "even in the absence of aggravating factors," would send the proper message.

"I agree that this was aberrational, that there is nothing in the record to indicate the judge has done this before, nor can we conclude she is likely to do this again," Tembeckjian said.

He reminded the judges that in one of the cases cited by the respondent, Matter of Sims, 61 NY2d 349 (1984), the court had said that even extremely poor judgment is not necessarily grounds for removal. However, in that case, where the commission recommended censure, the court voted for removal.

Tembeckjian suggested Blackburne is analogous to Sims, but said the strongest case in Matter of Gibbons, 98 NY2d 448 (2002), where a judge tipped off the target of a search warrant and the Court of Appeals upheld a removal determination.

Smith, however, asked if there was any case where the court or commission had removed a judge for a single act of misconduct, where there is no trace of venality and where the judge is remorseful.

"Where there is no indication of venality, where there is no personal gain, where there is a clean record, this would undoubtedly be a first," Tembeckjian responded.