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ALBANY-"Judges aren't biased", state Supreme Court justice Anthony J. Carpinello emphatically boomed from the bench of the Appellate Division, Third Department during oral arguments in an appeal heard in 2001 and the clerk of the court told the defendant's attorney not to raise the issue of judicial bias again before the court or else she wouldn't be practicing law because the judges didn't like judicial misconduct claims.
A ruling handed down last week by the Third Department clearly points out why public confidence in the integrity of the judiciary has grossly deteriorated and blatantly shows why rules regarding disqualification of judges must be immediately revised to stop the runaway robes of judicial tyranny.
Even though court transcripts show that Madison County Judge Biagio DiStefano called a defendant before him "scum" and a "predator" during a 1999 proceeding in which the defendant was charged with rape and related charges, the Appellate Court said there was no judicial bias and the judge didn't have to disqualify himself for bias in a later matter because of a case of convenient memory----he claimed he didn't recall making the biased comments.
In a unanimous opinion written last week by Justice Carl J. Mugglin, the Third Department denied the appeal of Thomas C. Wallis and his appeal issue regarding judicial bias because although the record clearly shows that Judge DiStefano berated Wallis during a prior Family Court proceeding, he couldn't remember doing it but admitted it after being shown a transcript of the proceeding.
"As this does not constitute a legal disqualification pursuant to Judiciary Law 14, the judge's discretionary decision to refuse to recuse himself will only be disturbed in circumstances which indicate clear abuse", the court ruled. 'We find no record support for the assertion that the trial judge abused his discretion in this regard".
The law mandating disqualification of a judge is very narrow, leaving most decisions for recusal to the discretion of the judge who rarely agrees that he can't be fair and impartial in a matter. Judiciary Law 14 mandates that a judge cannot take part in any action, claim, matter, motion or proceed to which he is party or in which he has been attorney or counsel or in which he is interested (financially) or if he is related by consanquinity or affinity to any party to the controversy within the sixth degree.
Wallis appealed a verdict rendered by Madison County Court and Judge DeStefano on March 19, 1999, which found him guilty of rape in the first degree, two counts of rape in the third degree, sodomy in the first degree, sodomy in the third degree and endangering the welfare of a child.
Wallis began cohabiting with the victim's mother when the alleged victim was four years old. The crimes for which he was convicted occurred during the time when the victim was 15 and 16 years of age. Wallis, while admitting to sexual activity with
the victim, testified that it did not occur prior to her 17th birthday. He was sentenced to a number of concurrent indeterminate sentences, the longest of which were 8 to 25 years, and to one consecutive sentence of 1 to 4 years for rape in the third degree. On appeal, defendant's counsel and defendant pro se claim that error occurred by reason of insufficiencies in the indictment, judicial bias, errors in jury
selection, improper testimony, inadequate disclosure and erroneous evidentiary rulings. They also claimed that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence, that defendant received inadequate services of counsel and the sentences are harsh and excessive.
The Appellate Court rejected all arguments and affirmed the judgment. Wallis was represented by John A. Cirando of Syracuse. http://decisions.courts.state.ny.us/ad3/Decisions/2005/15542.pdf
12-28-05
© 2005 North
Country Gazette
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