Are you a "gambling man"?
Respondent then told the defendant he was prepared to have a coin tossed to determine if the defendant should be sentenced to 20 days or 30 days in jail.
Alan I Friess was a judge of the Criminal Court of the City of New York, Kings County (who resigned from office on 31 December 1982 during the course of the 2nd proceedings) and the below were the extracts of the two decisions of the New York State Commission on Judicial Conduct (SCJC).
Starting with the more recent decision (dated 30 March 1983), the SCJC recommended that the former judge be removed from his office (notwithstanding the resignation) and made the following finding of facts (the former judge was referred to as the "respondent") (immaterial facts omitted):
"4. On June 22, 1979, in SPI, respondent presided over the case of People v. Louis Santiello, in which the complaining witness, John Haisley, charged the defendant with harassmentc
5. Before rendering his decision in the Santiello case, respondent told both Mr. Haisley and the defendant that he was going to ask the courtroom spectators to decide the case by a show of hands as to whether Mr. Haisley or Mr. Santiello was telling the truth. Respondent asked both Haisley and Santiello if they would abide by the spectators' vote, which he referred to as "the decision of the jury." Mr. Santiello agreed. Mr. Haisley refused.
6. Respondent then asked the courtroom spectators to vote by raising their hands in favor of either Mr. Haisley or Mr. Santiello. After the vote, respondent stated: "It seems to be a divided jury. This case is A.C.D.'d" [adjourned in contemplation of dismissal]. Respondent then rendered a disposition of A.C.D." (Charge I)
and
"8. On January 26, 1982, respondent was sitting incthe Criminal Court of the City of New York, and presided over a plea and bench conference in People v. Jeffrey Jones, in which the defendant was charged with jostling, a Class A misdemeanor. The assistant district attorney was John Jordan, and the defendant's counsel was Michael Moscato.
9. During the bench conference, respondent stated that he would sentence the defendant to 3-years probation if he pled guilty. The District Attorney's office took no position on sentencing. Mr. Moscato conferred with the defendant and advised respondent that the defendant would prefer a short jail sentence to probation.
10. Respondent stated that he would sentence the defendant to a term of 30 days in jail if he pled guilty. Mr. Moscato conferred with the defendant and advised respondent that the defendant would prefer a sentence of 20 days.
11. Respondent asked Mr. Moscato if the defendant was a "gambling man." Respondent then asked the defendant directly if he was a "gambling man."
12. Respondent then told the defendant he was prepared to have a coin tossed to determine if the defendant should be sentenced to 20 days or 30 days in jail. The defendant agreed to the procedure and asked respondent if the coin was rigged. Respondent told the defendant that the coin was not rigged.
13. Respondent requested that Mr. Moscato toss the coin. Respondent stated that if the coin landed "heads" the sentence would be 30 days, and if it landed "tails" the sentence would be 20 days. Mr. Moscato tossed the coin, which came out "tails."
14. As a result of the coin toss, respondent sentenced the defendant to 20 days in jail.
15. Other people in the court besides the individuals involved in the bench conference were able to observe the coin toss and hear respondent's statements during the conference." (Charge II)
The decision also noted the comment by the referee
" [The respondent] still insists with vehemence and fervor that the polling of the audience was an act of judicial propriety and dignity. He insists to this very day that his act was one of a genius and that he acted with judicial propriety. He compares his conduct of being innovative as a new judge to Mozart creating his first symphony at the age of 4"
The SCJC also made the following comments
"Of course, no one can make such a judgment with absolute certainty. However, in considering these issues and the entire record of the proceeding, we note respondent's complete failure to appreciate the fact that his conduct was totally inappropriate and plainly wrong. We also note his continued and unyielding insistence not only that his conduct was appropriate but that it was an act of genius. Finally, we take particular note that in June 1981, only seven months before the coin-tossing incident, respondent was censured by this Commission for having taken to his home the criminal defendant in a case over which he was presiding.cBy his conduct in these cases, respondent has exhibited extraordinarily poor judgment, utter contempt for the process of law and the grossest misunderstanding of the role and responsibility of a judge in our legal system."
The former judge exhibited a serious misunderstanding of the role of a judge in our legal system.
The other incident referred to in the above comments was the earlier decision (25 June 1981) in which the SCJC censured the judge based on the following finding (immaterial facts omitted):
"1. November 27, 1980, was Thanksgiving Day. At approximately 12:45 A.M. on that date, respondent presided over the arraignment of the defendant in People v. Elisia Fominasc The defendant was charged with murder and hindering prosecution. She was represented by the Legal Aid Society.
2. During the course of the arraignment, on the second call of the case, respondent stated that he would release the defendant in his (respondent's) custody and would find lodging for her with a woman friend of his. Subsequently, on the third call of the case, respondent released the defendant on her own recognizance and adjourned the case to the next session of the court, scheduled for the evening of November 27, 1980. Respondent then accompanied the defendant to his residence in Brooklyn and provided overnight lodging for her. Respondent and a woman friend of his remained at the premises.
3. Between 10:45 A.M. and 11:15 A.M. on November 27, 1980, following a conversation between respondent and the defendant, respondent asked Bernard Udell, an attorney friend of his, to meet with the defendant. The Legal Aid Society was still the defendant's attorney of record.
4. Mr. Udell met with Ms. Fominas during the day on November 27, 1980, and appeared with her in court that evening as her attorney. Mr. Udell neither requested nor received a fee. He did not discuss the merits of the case with respondent.
5. During the day on November 27, 1980, respondent arranged for another judge to preside over the Fominas case at the court session scheduled for that evening. ..
6. Respondent testified under oath that he made his offer to provide the defendant with lodging because the defendant was poor and she feared for her safety. Respondent believed that the defendant had no available friends or relatives to whom she could turn and that there were no public facilities readily accessible to her at that holiday hour.
7. The evidence indicates that respondent was motivated by compassion and his concern for the defendant's welfare and safety.
8. Respondent acknowledges that, by providing lodging at his residence for the defendant and by asking an attorney to meet with the defendant who at the time was represented by the Legal Aid Society, his actions created the appearance of impropriety and brought the judiciary into disrepute."
The SCJC also commented that the former judge exhibited 'a serious misunderstanding of the role of a judge in our legal system'.
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