"Caught In The Act! - So
March 6, just fifteen days ago, J.A.I.L. published a J.A.I.L. News
Journal entitled, "Judicial
Bribe-Taking, Caught In The Act." Our first
sentence stated, "CBS TV has done
America a favor by running an expose on the details
of Judge Garson taking a bribe on their TV program
48-Hours. Our thanks to CBS."
Now we all know
that breaking the rules has consequences. We were all taught
this principle from the days when we were a youth. When mom or
dad said "NO!" they meant it, and if we violated their orders, we
either got our hand slapped, butts beat, or some other form of
corporal punishment such as grounding.
Now when we
covered the story of Judge Garson being caught red-handed before
a camera taking a $1000.00 bribe, we cheered because it is
so seldom we actually get to witness on camera a judge taking a
In our March 6,
2005 J.A.I.L. News Journal we reported an unconfirmed
statistic that nearly 30% of all judicial proceedings involve a
bribe behind them.
nation we have established standards for judges. We call them
"The Judicial Canon of Ethics." In these Judicial Canon of
Ethics we set forth what all judges are forbidden from doing, or
what we require of them, such as, "All judges shall, in every
judicial proceeding before them, maintain the appearance of
fairness and justice in all matters," or "Every judge shall
refrain from unilateral communications with parties to a action that
is before them," and "Every judge shall recuse themselves
from cases in which they have a known conflict of interest,
or if they feel they cannot impartially judge in the case for
seem clear enough, and make sense to everyone. But as this follow-up
article below regarding the arrest and trial of Judge Garson for
bribery goes, it appears that if judges choose to violate such
principles, it is a "So What" issue, for these principles are
but mere recommendations without criminal penalties.
I dare say that
if a set of 10 Commandments were written for judges today, they
would be entitled, "The 10 Recommendations." So I ask, "When is the
law not the law?" Answer: When the violations thereof are committed
by judges. Just imagine if citizens could escape
punishment for violations just like judges. Remember this
next time you are charged with driving without a seat
belt. -Ron Branson
Prosecutors Argue to
Restore Felony Counts Against Garson
New York Law Journal
Questioning was sparse Friday during oral argument at the
Division, Second Department, of the prosecution's appeal to restore
felony counts against former Brooklyn Supreme Court Justice Gerald
During the 45 minute argument, three of the four judges on the panel
queried the two prosecutors, Brooklyn Assistant District Attorneys
Leonard Joblove and Seth M. Lieberman, about regulatory language that
Justice Steven W. Fisher had relied on in dismissing six counts of
receiving rewards for misconduct against Mr. Garson.
Only one question — a query that embraced the prosecution's key
argument — was posed to Mr. Garson's lawyer, Diarmuid White.
The questioning did not in any way telegraph the judges' views of the
The arguments centered on Justice Fisher's ruling last April
dismissing the reward counts on the strength of a 1979 decision
issued by the Court of Appeals finding that violations of the Code of
Judicial Conduct could not serve as a basis for criminal prosecution
that a judge had committed official misconduct.
Despite the dismissal, Mr. Garson still faces a bribery count and two
other misdemeanors counts stemming from charges that he gave court
appointments, ex parte legal advice and preferential treatment to a
lawyer who gave him thousands of dollars worth of free drinks and
meals, and in one instance a box of expensive cigars. The lawyer,
Paul Siminovsky, is cooperating prosecutors.
Five of the six dismissed reward counts related to Mr. Siminovsky's
payment of referral fees to Mr. Garson, an alleged violation of a
judge's duty under the code — now set forth in Rules of Judicial
Conduct promulgated by the court system — not to lend the prestige of
the office to advance private interests. The sixth count accuses Mr.
Garson of accepting a box of cigars for having given Mr. Siminovsky
ex parte advice.
The dismissal of the six counts was a serious blow to prosecutors
because it meant they could not present their most graphic evidence
as direct proof of a crime. The prosecution has videotapes, recorded
in Mr. Garson's robing room, of Mr. Siminovsky giving the judge the
box of cigars and $1,000 for having referred clients to him.
The videotapes will almost certainly come into evidence because
Jeffrey G. Berry, who will preside over the trial, allowed them
evidence at a trial last year of two court workers accused of
steering cases to Mr. Garson. But, without a reversal, the tapes will
come in as background material and not direct evidence of a
With the referral fee counts out of the case, the prosecution is left
gifts such as free meals and cigars at the core of its case.
In dismissing the reward counts, Justice Fisher, who has since
appointed to the Appellate Division, Second Department, relied on the
Court of Appeal's 1979 ruling in People v. La Carrubba, 46 NY2d 658.
Justice Fisher relied on a statement in the preamble to the Rules on
Judicial Conduct that the rules are "not designed or intended" as a
basis for "criminal prosecution."
Justices Robert A. Lifson, Fred T. Santucci and Robert A. Spolzino,
asked the two prosecutors in one fashion or another whether they were
not, in fact, seeking to use the rules as a basis for a criminal
Mr. Joblove, the chief of the Brooklyn office's appeals bureau
responded that a "plain reading" of the statute made it clear that a
violation of the conduct rules was the type of infraction legislators
had in mind when they defined a public servant's violation of a duty
as the crime of official misconduct.
The current statute is more broadly worded than the official
statute was in 1979 when La Carrubba was decided, Mr. Joblove noted.
The statute now proscribes a public servant's violation of any duty,
not just one that is "inherent in the nature" of the official's
Mr. Lieberman, the Brooklyn office's senior appellate lawyer, argued
that barring the prosecution of offenses under the judicial rules
would lead to an "absurd" result. Judges could be prosecuted for the
crime of receiving unlawful gratuities for actions they are supposed
to take, he pointed out, but not for receiving rewards for performing
acts that they were prohibited from taking.
Similarly, Mr. Lieberman contended, a non-judge could be prosecuted
for giving a judge such a reward, while the judge could not.
The one question posed to Mr. White came from Justice Spolzino who
asked why the prosecution's view of the rewards statute — that a
violation of the conduct rules was precisely the sort of dereliction
the statute was designed to encompass — was not correct.
Mr. White said he would agree with Justice Spolzino were judges
involved. The only forum in which judges may be disciplined for
violating the conduct rules, he said, is the state Commission on
Judicial Conduct. The state Constitution and the Court's ruling in La
Carrubba make that clear, he argued, in order to preserve judicial
Arrested in 2003
Mr. Garson was arrested in April 2003 and indicted on six felony
counts of receiving rewards for official misconduct. The crime of
receiving a reward for official misconduct is a Class E felony
carrying a maximum sentence of 1-1/3 to 4 years in prison.
In August 2003, Brooklyn prosecutors obtained a superseding
indictment adding the more serious charge of bribe receiving in the
third degree, a Class D felony with a top penalty of 2-1/3 to 7
Justice Fisher in People v. Garson, 4 Misc. 3d 258, rejected the
prosecution's attempts to distinguish Mr. Garson's case from the
precedent set by the Court of Appeals in La Carrubba.
The Brooklyn office had argued that while La Carrubba was pending the
state Constitution had been amended to explicitly subject judges to
"rules of conduct" issued by the court system. The court system
subsequently promulgated rules based on the judicial code which at
that time was written by the New York State Bar Association.
The court system rules, unlike those in the code, the prosecution
were mandatory, rather than aspirational. The prosecution also
stressed that La Carrubba involved a misdemeanor charge of official
misconduct rather than the more serious charge of receiving a reward
In La Carrubba, the Court overturned the conviction of a Suffolk
County judge who had dismissed a traffic violation issued to a
Mr. Garson resigned from the bench at the end of last year. Had he
resigned he would have been required to be certified by the Office of
Court Administration to serve another two years. Mr. Garson, 72, like
all Supreme Court justices 70 or older, had to be certified every two
years to remain on the bench until he turns 76.
Mr. Siminovsky has pleaded guilty to the misdemeanor charge of
unlawful gratuities and prosecutors have agreed to recommend that he
not be sentenced to jail as long as he testifies as he has promised
Siminovsky has taken steps to give up his admission to the bar and
amended his cooperation agreement to pledge that he will never seek
— Daniel Wise can be reached at email@example.com.