New York State Commission on Judicial Conduct

In the Matter of the Proceeding Pursuant to Section 44, in Relation to Henry R. Bauer, Judge

CONCURRING OPINION BY MR. FELDER

In his presentation to the Commission, respondent poses the question (twice):

"On a very basic level. I've asked myself ... the following question: can one be both a very good judge and a bad judge at the same time?" (Oral argument, p. 62)

"Can a person be both a good judge and a bad judge at the same time?" (Oral argument, pp. 62-63)

He correctly answers his own question: "I respectfully suggest that one cannot." (Oral argument, p. 63).

The problem lies not in respondent's answer, but in his reasoning. By respondent's logic, he has dispensed more "good" justice than "bad", and, therefore, he is a "good" judge. Suggesting that his good works as a judge outweigh his shortcomings, respondent cites his accomplishments; e.g., establishing a drug court and a domestic violence court. He treats "good" justice and "bad" justice as fungible commodities, and whichever is paramount in the mix characterizes the whole.

The reason one cannot be both a good judge and a bad judge is because the public is entitled to not have justice improperly dispensed, in respondent's words, by "a bad judge," notwithstanding the judge's good works. We do not expect our judges to be perfect instruments of the law, but we do expect them to follow the law as it clearly should be comprehended, and then apply to this understanding of the law the judge's full and honest intellectual capacity.

Respondent engaged in consistent, pernicious and unremitting violations of the rights of defendants who appeared before him. The pattern was that defendants were arrested for rather minimal infractions of the law, including those for which there was no jail sentence applicable as a punishment. Since the defendants were virtually all poor persons or persons of modest financial ability, bail was set in such an amount that would be impossible for them to meet. Not having the ability to post bail, they would be incarcerated, and, usually after a week-end or more in jails on the return date, respondent would make them aware that if they pled guilty, a fine would be set and they would be sentenced to time already served, able to walk out of the courthouse immediately. In the words of one defendant. "I just wanted to go home" (Tr. 105).

Additionally, many defendants were not effectively advised of their right to counsel or to have assigned counsel. It is noteworthy that on the occasions respondent claims he did proceed appropriately, there were no transcripts made of the proceedings. As the Commission's decision states: "This... coercive pattern seemed particularly harsh on defendants who could not afford to hire an attorney to assert their rights."

The financial ability or lack of it by defendants was the linchpin in respondent's panoply of wrongdoings. The inescapable leitmotif throughout respondent's justice-dispensing scheme is that the defendants were poor. Without this central component, respondent's methodology would fail. To set $25,000 bail for persons because of whom they associate with, or for riding a bicycle on the sidewalk, or on a l6 or l9 year old for trespassing, or for a violation that by law carries with it no jail time, would be, given the financial realities of the defendants' lives, as insurmountable an obstacle as if bail were set at $25,000,000. In short, it was effectively a way to put people in jail (assisted by lack of counsel) without any practical recourse.

Parenthetically, I do not believe that respondent's unfailing use of the word "sir" in addressing a defendant demonstrates his politeness. The word "sir," when coupled with a colloquy that, in substance, denied the defendants their right to counsel, is akin to the police officer who stops a driver and, with all the attendant intimidation of flashing lights, gun on belt and uniform, asks for a driver's license or tells the driver to "Get out of the car, Sir." While on paper the words may convey courtesy and respect, the tone of the actual encounter may be quite different.

Respondent's general approach to his duties did, however, accomplish one thing. It enabled him to deal with a large volume of cases and to conduct four trials in three years.

What is disturbing is that respondent, at this late time, neither acknowledges his mistakes nor clearly indicates that he has any intention of changing his methodology. At oral argument, I asked him the question directly, twice:

MR. FELDER: Judge, may I ask you something? Since you received notification from the Commission of these things, have you changed your bail practice or your methodology for advising people of their rights to counsel? (Oral argument, p. 66)

MR. FELDER: But do you, since this stuff began here, since this little proceeding we have, have you plainly advised them that if they can't afford an attorney, that an attorney will be obtained for them?" (Oral argument, p. 68)

Respondent's answers were cloudy and certainly less than satisfactory. He did not inspire confidence that he has learned anything from the proceeding, and it is established law in New York that a judge's failure to recognize the inappropriateness of his actions or attitudes compounds the impropriety. Matter of Aldrich, 58 NY2d 279. 283 (1983).

What happened here, to paraphrase Shakespeare, [2] is not the stuff of justice. For much of the world, who do not enjoy the legal protections afforded to Americans, justice is the stuff of dreams. What happened here is the stuff of, at least, troubled sleep.

Dated: March 30, 2004