A Judge’s Status, Robed in Silence
by Terence McGinley, special to ProPublica Sep. 2, 2014, 2:22 p.m.
The hall is cavernous on the fourth floor of the Queens Supreme Court building. Whispers feel magnified as they echo amid the marble floors and vaulted ceiling. The whispers are of lawyers and clients, their lives in one kind of legal limbo or another, figuring out the next bit of strategy.
The newest judge on the court’s fourth floor is Barry Kamins, a man with as prestigious a resume as any in the New York state court system. But his future is also uncertain: Kamins is currently being investigated by the state Commission on Judicial conduct for a range of possible ethical violations.
A recent New York City Department of Investigation report that examined Charles J. Hynes’s campaign spending and other conduct during his failed bid for a seventh term as Brooklyn District Attorney found that Kamins had been providing legal and political advice to Hynes over many months. The report revealed that Kamins, then the supervising judge for all of Brooklyn, recommended staff, prepped Hynes for debates and even provided extra legal advice dealing with active cases being handled by Hynes’ office.
Following the June 3 DOI report, Kamins was removed from his senior position. But 10 weeks later, he is back on the bench hearing disputes over property values and deciding foreclosure cases.
David Bookstaver, the spokesman for the New York State Court system, said that, by law, a judge can only be removed or otherwise disciplined by the Commission on Judicial Conduct.
“Right now there is no mechanism to keep him from the bench. This isn’t subjective, it’s the constitution,” Bookstaver said. “There is a process.”
ProPublica has spent much of the last two years examining the troubled oversight system for prosecutors who abuse their power. That examination has found that prosecutors, even those who engage in flagrant misconduct, are almost never punished. And in the rare cases in which state disciplinary panels do undertake a review of complaints of misconduct, those proceedings are conducted in secret, and word of any discipline typically remains unknown to the public.
Much of the work of the Commission on Judicial Conduct also takes place in secret, and in Queens Supreme Court there is no obvious way for anyone to know that Kamins may be facing serious discipline.
Robert Tembeckjian, the administrator of the commission, said investigations can take anywhere from six months to two years to complete, “depending on the complexity of the case and the volume of complaints.”
“It is a lengthy process, not an easy thing to do,” Tembeckjian said. “It shouldn’t be easy. Like anybody accused of wrongdoing, a judge should have the ability to confront the charges.”
Kamins has not spoken publicly since the report was issued. His lawyer, Paul Shechtman, said shortly after the report’s release that Kamins would never abuse his judicial position. Efforts to reach Shechtman on Monday were not successful.
Tembeckjian, in an interview, said his commission has advocated for more power for decades 2014 seeking state legislative approval for its hearings to be public and for the authority to suspend a judge temporarily.
“The commission does already have significant authority, but our experience over 40 years is that there are other tools we should have to render the appropriate discipline,” Tembeckjian said.
Lawrence Goldman, a lawyer who served on the judicial conduct commission from 1990 to 2006, said “for years the commission has said in its annual report that the cases should be made public.”
“It would help educate the public and help the proceedings,” he said.
New York’s is one of 15 state commissions that conduct their investigations in secret.
“I think it is not a high priority in the state legislature. Sometimes a bill pops up in the state senate, sometimes in the assembly. In the past 30 years it has maybe come to a vote four or five times,” Tembeckjian said.
According to the commission, only 23 New York judges were disciplined in the 100 years prior to the commission’s creation in 1974. Previously, discipline was handed down by a loose network of ad hoc courts with no permanent employees. The Commission currently has 46 full time employees and offices in New York, Albany and Rochester.
There are currently 10 commissioners and one vacancy awaiting appointment from the governor. The leader of the State Assembly and the Chief Judge on the Court of Appeals also appoint commissioners. Eight members need to agree before a decision is made. The discipline is then recommended to the Court of Appeals.
In its history, the commission has recommended that 168 judges be removed from their positions. The vast majority of the cases involved judges sitting in the state’s more local courts, including town and village courts.
The commission can also admonish or censure judges, two levels of public discipline short of removal. Judges can also be pressed to resign. But to some, the commission’s powers still feel limited.
Goldman said there has long been support for the idea of allowing the commission to suspend or otherwise limit a judge’s powers during any investigation into their conduct.
This year the commission has taken action against seven judges, all from upstate or Long Island. Four agreed to resign, two were censured and one judge was admonished. None were as prominent as Kamins, but Tembeckjian said the commission is not afraid to act against any judge.
“The commission’s approach is to examine the behavior regardless of how powerful the judge is,” Tembeckjian said.
The Department of Investigation report on Kamins shocked many in the New York legal community.
Kamins has advised the New York City Justice Task force, served on the New York Law Journal Board of Editors and has taught at Fordham and Brooklyn Law schools. He is the author of numerous law articles, and in recent years had won a number of appointments to positions of great influence and authority within the state court system.
“This is a guy who was president of the New York City Bar. A guy who could have made a big living with a private firm, but instead stayed in the criminal courts,” Goldman said.
The DOI report focused on hundreds of email exchanges Kamins had with Hynes. On a near daily basis, Kamins instructed the district attorney 2014 on how to get re-elected, on how to deal with his own legal problems, and, perhaps most damningly, on how to manage any damage from an investigation into possibly wrongful convictions involving the district attorney’s office over the years.
“I don’t charge much for political consulting,” Kamins joked to Hynes in an email dated June 3, 2012.
“You are the new David Garth,” Hynes responded.
Garth was a man described by the New York Times in 1989 as the “grandfather of modern political advertising.”
Bookstaver, the spokesman for the court system, indicated that, in assigning Kamins to a Queens courthouse, there was some value seen in keeping Kamins out of the Brooklyn courts, where he had spent his career as a prosecutor, defense lawyer and powerful judge.
It is in that Queens courthouse, then, that until the commission rules 2014 perhaps soon, perhaps in 18 months 2014 Kamins will be deciding people’s legal fates.