In May 2020, Minneapolis police officer Derek Chauvin was charged with homicide in the death of George Floyd, an African American man who died in police custody. Chauvin was videotaped pressing his knee on Mr. Floyd’s neck for several minutes while the victim said he could not breathe.
Mr. Floyd’s death, which was one of many high-profile tragedies around the country in which Black citizens died at the hands of police officers, generated an intense, prolonged national examination of racial and cultural inequalities in our social, political and legal institutions, as well as in our daily lives.
Special Advisor on Equal Justice in the New York State Courts
In June 2020, Chief Judge DiFiore asked Jeh Johnson, former Secretary of Homeland Security, to head a study of racial and other cultural biases in the New York State court system. Secretary Johnson issued a 100-page report on October 15, 2020, noting that his team had interviewed or heard from over 300 individuals or organizations, including the Commission.
Secretary Johnson’s Equal Justice Report (“Report”) is available on the court system website. Among other things, it describes the history and structure of the New York court system, chronicles a history of bias with illustrative examples, and makes several recommendations, primarily aimed at raising awareness of institutional, implicit, systemic bias and cultural insensitivity, such as:
- Comprehensive mandatory bias training for judges and court employees
- Addressing implicit bias in the introductory video shown to prospective jurors
- Developing clear guidelines for court employees regarding their professional or personal use of social media, with an emphasis on avoiding racial or cultural insensitivity, which reflects poorly on the court system when espoused by people associated with the system
- Initiating “best practices” for the reporting and investigation of bias complaints in the court system
- Proposing legislation, rules or procedures that address bias
- Improving translation services
- Committing human resource professionals to improve diversity in the workforce
The Commission is substantively mentioned twice. The Report notes that our website and the OCA website do not make clear that complaints against judges or court employees may be submitted anonymously (Report p 89). The Report also suggests that the Commission and the OCA Inspector General report annually to the Court of Appeals on the number of bias complaints received each year, and their disposition (Report p 90).
Both recommendations as to the Commission have been implemented. As to anonymous complaints, our website now includes the following explanation of our policy and practice regarding. It reads as follows:
Yes [a complaint may be submitted anonymously]. However, because we cannot contact the complainant to obtain additional details and corroborating evidence, it is often difficult to investigate anonymous complaints and the Commission is very cautious about proceeding without specific and verifiable information. A mere accusation will not suffice. An anonymous complaint should include detailed information about the alleged misconduct that may be verified, such as the names of witnesses who may have seen the misconduct, case names and the names of the parties or lawyers if the alleged misconduct occurred in connection with a court case, relevant dates and places, and as specific a description as possible of the alleged misconduct. If investigation of an anonymous complaint were authorized, the Commission's Administrator would summarize and sign it, according to statute.
As to annual statistics regarding complaints alleging bias, the Commission has always reported such numbers in its annual reports, though without breaking them down between complaints alleging bias for or against a particular litigant or attorney versus bias based on the broader basis of race, culture, religion or ethnicity. Beginning with this annual report, we offer such breakdowns in the appended statistical charts.
On its own initiative, the Commission modified the standard presentation its representatives make at training programs for new judges and refresher programs for incumbent judges, adding a unit on bias in the courts and the obligation incumbent on judges to refrain from and discourage it.
The Responsibility of Judges
While Secretary Johnson’s Report identified instances of biased behavior among certain court employees that brought the court system into disrepute, it did not particularly address what role or responsibility judges might bear in this regard, or what role the Commission has played historically in identifying and disciplining judges for behavior that was biased. However, in an address to the New York State Bar Association on January 29, 2021, which was reported by the New York Law Journal, Secretary Johnson was quoted as follows: “Time and time again, we would hear stories about inhumane, degrading treatment by court officers toward litigants, litigants of color… And sometimes the answer was: The judge looks the other way or the judge doesn’t want to wrestle with a difficult issue. The judge is happy with his or her court officer and doesn’t want to get in a fight with the union.”1 To be sure, representatives of various court employee organizations have taken issue with such broad characterizations of their members. And of course, the Commission’s constitutional jurisdiction is limited to ethics-enforcement as to judges and does not extend to court employees.
To underscore Secretary Johnson’s point, however, that judges are responsible for more than their own behavior, the Rules Governing Judicial Conduct require judges:
- to observe high standards of conduct, dignity and decorum themselves. 22 NYCRR 100.1, 100.3(B)(2);
- to avoid membership in any organization that practices “invidious discrimination on the basis of age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability or marital status” 22 NYCRR 100.2(C);
- to be patient, dignified and courteous toward all with whom they engage in official business. 22 NYCRR 100.3(B)(2);
- to avoid words or conduct that “manifest bias or prejudice, including but not limited to bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status” 22 NYCRR 100.3(B)(4);
- to “require staff, court officials and others subject to the judge's direction and control to refrain from such words or conduct” 22 NYCRR 100.3(B)(4); and
- to “require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status, against parties, witnesses, counsel or others” 22 NYCRR 100.3(B)(5).
In its 42-year history, the Commission has disciplined a number of judges who have themselves engaged in biased or prejudicial behavior and/or have tolerated or encouraged it in others. For example:
- In Matter of Canning (2019), a Town Court Justice resigned and agreed never to return to the bench, as the Commission investigated him for publishing the image of a noose on social media while calling for people to fear such punishment.2
- In Matter of Senzer (2019), a Village Court Justice was removed from office for inter alia referring to a participant in a judicial proceeding as a “[C word] on wheels.”3
- In Matter of Hallett (2018), a Town Court Justice resigned and agreed never to return to the bench, as the Commission investigated him for making homophobic comments to an attorney who appeared before him.4
- In Matter of Ellis (2007), a Town Court Justice was removed from office for telling a couple in court that they should stop “jewing” other landlords, by which he meant “swindling or cheating.”5
- In Matter of Pennington (2005), a Village Court Justice was removed from office for repeated use of the “N word” and referring to Black people as “colored.”6
- In Matter of Assini (1999), a Town Court Justice was removed from office for inter alia referring to another judge as an “[F word][C word].”7
- In Matter of Mulroy (1999), a County Court Judge was removed from office for inter alia telling the prosecutor in a murder case that the victim was just “some old [N word] bitch.”8
- In Matter of Romano (1998), a Town Court Justice was removed from office for inter alia making gender-biased remarks in the course of presiding over domestic assault and sexual abuse matters which, in one instance, encouraged the defense attorney to do the same.9
- In Matter of Schiff (1993), a Village Court Justice was removed from office for saying to attorneys that it was safe for young women to walk the streets “before the Blacks and Puerto Ricans moved here.”10
- In Matter of Ain (1992), a County Court Judge was censured for saying to an attorney, “You’re not an Arab, are you?” and “what the [F word] do you people want anyway?”11
- In Matter of Cook (1986), a Town Court Justice was removed from office for referring to “those damn Puerto Ricans” and for saying, “I have a less favorable opinion toward colored people.”12
- In Matter of Agresta (1984), a Supreme Court Justice was censured shortly before he retired for referring in open court to a potential co-defendant as “another [N word] in the wood pile.”13
- In Matter of Fabrizio (1984), a Town Court Justice was removed from office for inter alia repeatedly referring to Blacks as the “N word” and referring to Hispanics as “spick.”14
- In Matter of Cerbone (1983), a Town Court Justice was removed from office for inter alia referring to three Black men in a bar with the “N word” and as “black bastards” and threatened to “hang” them if they appeared in his court.15
- In Matter of Aldrich (1982), a County Court Judge was removed from office for uttering racial epithets to a security guard, telling youthful-offender defendants that they would be “raped” in jail by “N word” prisoners and referring to a female public official as a “C word” in the course of a case conference.16
- In Matter of Bloodgood (1981), a Town Court Justice was removed from office for referring to a traffic defendant, in writing, with the “K word” as a slur against a person he believed to be Jewish.17
- In Matter of Kuehnel (1979), a Town and Village Court Justice was removed from office for inter alia referring to a group of youths as “Black bastards” and the “N word.”18
While the foregoing examples do not represent the judiciary as a whole, together with Secretary Johnson’s report, they do underscore that biased behavior exists at all levels of our courts and society. For its part, and as its record demonstrates, the Commission takes its judicial ethics enforcement responsibilities seriously. While every case before the Commission is considered on its merits, and while racial, cultural, ethnic, religious and gender biased behavior did not always result in removal from office,19 it should be clear now that as the body of judicial disciplinary law has developed over the years, there is little tolerance for a judge who utters such offensive language or otherwise engages in egregious misbehavior.
From the 2021 Annual Report, pages 23-27