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SCHENECTADY---Concluding that Schenectady Family Court Judge Jo Anne Assini engaged in judicial misconduct "by neglecting to inform litigants of their statutory rights and by addressing them in an intemperate, demeaning manner", the state Commission on Judicial Conduct determined with an 8-0 vote that the judge should be censured.
Censure is little more than a slap on the wrist and a mark on the judge's "permanent record".
The commission noted, in mitigation, that Assini, a judge since January, 2001, had expressed remorse for her conduct and that "she now appropriately advises litigants of their rights".
"Every judge has an obligation to respect and comply with the law and to act in a manner that inspires public confidence in the fair-mindedness and impartiality of the judiciary", the commission wrote in his determination.
Judge Assini had been served with a formal written complaint in April containing five charges. One charge was later dismissed. She was represented by attorney Donald Ford Jr.
Assini can either accept the commission's determination or, within 30 days from the date she received the Nov. 18 ruling, make a written request to the Court of Appeals for review.
In the matter of Grandy v. Birch, in June, 2002, the commission said that parties Jennifer Grandy and Donald J. Birch Sr. appeared without counsel before Assini on a petition concerning visitation as to their daughter. Ms. Grandy was seeking to preclude Birch's son from being present when he exercised visitation as to their daughter.
Despite the requirements of the Family Court Act, Judge Assini failed to advise them of their right to counsel, right to an adjournment to confer with counsel and the right to have counsel assigned by the court where the parties are financially unable to retain counsel of their own.
After summarizing the contents of the petition for Birch who had not received it. the judge entered a denial on his behalf and engaged the parties in an discussion of Ms. Grandy's petition. When the parties addressed each other, she sated, "Shhh. What do you two think you're doing?" Thereafter, Birch apologized to the judge.
Assini then admonished Ms. Grandy who had had knee surgery and had difficulty sitting in a chair, to "sit up straight".
Birch, who worked as a security guard for a local college, appeared before the judge in his uniform shirt. He had come to court from work and planned to return from court to work. She criticized him for appearing before her dressed in his work clothes, told him that he looked like a "slob" and said that he could have brought something "decent" to wear, which is what "normal" people do. She also stated that Birch could buy a shirt or necktie at the City Mission for 50 cents.
When Birch politely asked for a copy of a court document that he believed existed from a previous proceeding, the judge admonished him for acting as if he were in charge of the court, warned that he might be held in contempt, read to him the contempt statute and again admonished him for wearing his college uniform shirt to court.
When Ms. Grandy stated that she had consulted with her attorney who advised that she should proceed pro se, Judge Assini sarcastically stated, "Oh, okay. All right. I'll look forward to meeting her".
When Birch indicated that he did not believe he could afford counsel, Assini instructed him to first contact five attorneys before she would consider assigning counsel to him and then adjourned the matter. Shortly thereafter, Ms. Grand discontinued her petition because of Judge Assini's impatience and discourtesy toward her and Birch.
In the matter of Nicole M. Moore v. Richard E. Moore, also in June, 2002, the parties appeared before Assini on a visitation petition. Ms. Moore was represented by Brian DeLaFluer. Mr. Moore appeared with counsel James S. Martin.
The judge asked Ms. Moore is she would be willing to agree to the current visitation scheduled and when Ms. Moore said she would not, the judge said in a raised, angry voice, "Okay, then I'm gonna give him more time. Understand?"
When the judge noticed that the Moore child was present in the courtroom, accompanied by her grandfather, she angrily raised her voice in directing that the child be removed.
Just after the child was removed from the court, attorney Martin tried to speak but she interrupted him and stated, "No, Mr. Martin, we're done. We're done. I am so sick of this. I am so bored with this. Yes, bored with having---coming in here and then they [the parties] start to talk". She then adjourned the matter.
In September, 2003, in Niccole Barros v. Paul M. Barros and Mary Jane Brown, Ms. Barros who was incarcerated at the time, appeared pro se before Judge Assini seeking visitation with her nine children during the period of her confinement in the Schenectady County Jail.
Assini failed to advise Ms. Barros her right to counsel, the right to adjournment to confer with counsel and the right to have counsel assigned by the court if she were financially unable to retain counsel.
Ms. Barros' husband, who had custody of the children, twice stated that he would not oppose the children's visitation with their mother, but that he was concerned that visitation in jail would be detrimental to the mental stability of the children. Judge Assini granted Ms. Barros bi-monthly visitation, with the law guardian's approval, and asked Ms. Barros if the schedule was satisfactory. She replied that she had no choice but to accept the agreement. Assini informed her that she did have a choice and allowed her to ask for what she wanted. Ms. Barros stated that her husband had not cared about the children's mental stability when the children had, on several occasions, been taken into New York state prisons to visit their paternal uncles. Judge Assini then replied, "Okay, Ms. Barros. We're not going to have any visitation then".
After Ms. Barros became disorderly, the judge stated that at her next appearance, she would be held in contempt and that counsel would be assigned. She adjourned the proceeding until Oct. 8, 2003.
On the return date, the judge did not consider the matter of Ms. Barros' petition for visitation with her nine children. She did consider her request for joint custody of and visitation with her 10th child. Ms. Barros was represented by assigned counsel and her 10th child was in custody of a relative, Vicky Vice, who was also present.
Ms. Vice told the court she would have no problem bringing the child to jail to visit Ms. Barros. The attorney suggested that the judge prepare an order for the jail because the jail might not permit a child to visit the incarcerated mother without such an order. When Ms. Barros stated that Ms. Vice had no problem bringing the baby to the jail on the weekend, the judge stated to her, "You do this again, you are going to add on to your sentence".
After Assini had determined that Ms. Barros could have visitation with her child, the judge sought to end the proceeding. Ms. Barros stated, "That's not what I was askin'. I was coming in for joint custody". Judge Assini said, "I'm not hearing this case". She then concluded the proceeding without issuing the visitation order.
In Edward H. Spain IV v. Brandee Spain, In November, 2001, the parties appeared before the judge on cross petitions for custody. There was also a pending divorce proceeding in another court. When the judge asked the parties if they were represented by counsel, Mr. Spain stated that he had spoken to an attorney but had expected an uncontested divorce. The judge put the matter down for trial in order to give the parties enough time to file for divorce and stated that she would not hear the petitions but would transfer the matter to Albany County where the divorce proceeding would be held. She told the parties they should return to court on Jan. 4, 2002, with their attorneys, or if they did not retain counsel, they should request that she assign counsel.
On the return date, she noted that Mr. Spain was present without counsel and demanded to know why. He informed her that he had discussed the matter with his attorney and they had decided that it was not necessary to have his attorney represent him in the custody matter, so he wanted to proceed to trial pro se. Judge Assini asked in a harsh tone if Spain knew how to put documents into evidence or how to cross-examine witnesses. She advised him that she would hold him to the same standards that she would hold all attorneys to in a trial and directed him to make an immediate effort to find an attorney during a short recess. When court reconvened, he indicated that he had been unable to speak with any attorneys. The judge lectured him that he had used up the court's valuable time and adjourned the matter.
The parties later discontinued their action because of the judge's impatience and discourtesy in court.
The commission noted that when Assini assumed the bench in 2001, she was the only Family Court judge in Schenectady County. The court had been a two-judge court for many years. The commission said she had inherited a large caseload and many cases were already delayed beyond the court system's standards and goals. According to the commission, Assini discovered upon assuming the bench that in excess of 400 Department of Social Services orders had not been completed, many years old, leaving children in jeopardy. She allegedly cleaned this backlog single-handedly, according to the commission and the stress of this backlog contributed to her lack of patience and improper demeanor. http://www.scjc.state.ny.us/Determinations/A/assini,_jo_anne.htm 12-02-05
© 2005 North
Country Gazette
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