In a previous post, we examined how East Greenbush Town Justice Charles Assini managed to get himself removed from the bench. In this post we'll examine another local justice, this fellow a bit further to the north. Our reason for exploring other judicial follies is to put Bauer's actions into context rather than just examine the charges and the findings against Bauer. Thus, we're giving you a look other judges and their problems.
This next judge is a far cry from Assini.
Douglas C. Mills, a judge of the Saratoga Springs City Court, Saratoga County, was served with a Formal Written Complaint dated July 17, 2003, containing two charges. On October 5, 1999, Jason Kalenkowitz appeared before Mills for a non-jury trial on a charge of Possession Of An Open Container in violation of Section 61-1 of the Code of the City of Saratoga Springs. Mr. Kalenkowitz, who was a full-time student at Skidmore College in Saratoga Springs, appeared pro se. Assistant District Attorney David Harper called one witness, police officer Eileen Cotter, who had arrested Mr. Kalenkowitz. Mr. Kalenkowitz testified on his own behalf and called two witnesses.
During Mr. Harper’s cross-examination of a defense witness, the following occurred:
Q. You testified there is a sidewalk there. Was she [police officer Cotter] standing on the house side of the sidewalk or in the pavement, on the side of the sidewalk?
A. Probably on the house --
MR. KALENKOWITZ: This is ridiculous.
THE COURT: Really? The next time you have an outburst like that, I will hold you in contempt, and sentence you to ten days in the Saratoga County jail. Want to state your reasoning on the record?
MR. KALENKOWITZ: Because he’s going on to something that’s already been said. He’s asking questions about calling somebody a bitch. That is irrelevant. He’s using -- trying to get something that is irrelevant. I believe the cops in the front yard saw me walk out. I don’t see how, me calling somebody a bitch, that I testified to, has anything to do with their testimony.
THE COURT: That’s what you’re concluding, that all these proceedings are ridiculous?
MR. KALENKOWITZ: Also, me, you, probably, and him, probably, have had a drink - and me being arrested for drinking in the front yard.
THE COURT: That’s why we have a court. I am warning you, if you interrupt me, you will go to jail.
MR. KALENKOWITZ: You asked me a question. I am answering it.
THE COURT: Good idea. Because you will go to jail.
MR. HARPER: No further questions.
THE COURT: Want to make any concluding remarks?
MR. KALENKOWITZ: I just made them.
THE COURT: Mr. Harper?
MR. HARPER: I will waive a closing statement.
At the conclusion of the trial, respondent found Mr. Kalenkowitz not guilty.
The following then occurred:
THE COURT: However, Mr. Kalenkowitz, the Court is not going to avoid having a conversation with you about your attitude, which is much more important to me than this whole proceeding.
MR. KALENKOWITZ: I am sorry. I am frustrated with the whole ordeal. I am missing classes for this court date, and it is the second charge I was brought up against, in Saratoga, that I was not guilty of, and it’s taken a lot of time and money out of my hands.
THE COURT: Does that mean you can be disrespectful to the Court and declare this whole thing is a joke on the record? Do you think that [endears] yourself --
MR. KALENKOWITZ: No. I --
THE COURT: Now we’re going to have a contempt hearing. You’ve again interrupted me.
The Court finds you are in contempt of Court. The Court has previously warned the Defendant, several times, not to interrupt the Court, and he did so again. So I will sentence the Defendant to three days in the county jail. Please take the Defendant into custody. You will have to learn your lesson the hard way.
MR. KALENKOWITZ: You’re a good man for doing this.
THE COURT: Mr. Kalenkowitz, you’re an obnoxious young man.
MR. KALENKOWITZ: You’re [an] obnoxious old man.
THE COURT: I will sentence the Defendant to three more days in the Saratoga County Jail, to total six days.
On October 6, 1999, the day after Mills finding of contempt, Mills realized that he was in error in finding Mr. Kalenkowitz guilty of Criminal Contempt in the second degree because Mr. Kalenkowitz was not informed that he was being charged with that crime and there was no trial on a properly filed accusatory instrument. Instead of releasing him from custody, Mills, sua sponte and in Mr. Kalenkowitz’s absence, decided to dismiss the Criminal Contempt charge and to charge Mr. Kalenkowitz with contempt in violation of Judiciary Law Section 750. The sentence remained the same. Mills issued a commitment order dated October 6, 1999, which stated that Mr. Kalenkowitz was convicted of contempt in violation of Judiciary Law Section 750 and was sentenced to a term of six days. No new trial or hearing on this charge was held.
On October 7, 1999, Mr. Kalenkowitz, still in custody and unrepresented by an attorney, appeared before Mills. Mills advised Mr. Kalenkowitz of his right to an attorney, but did not ask if he wanted an attorney. Assistant District Attorney Harper moved to dismiss the criminal contempt charge on the ground of double jeopardy, apparently on the belief that on October 5, 1999, Mr. Kalenkowitz had been found guilty of contempt under Judiciary Law Section 750. Mills dismissed the charge, but the defendant was returned to jail on the commitment order dated October 6, 1999, which reflected a conviction and sentence for contempt under Section 750 of the Judiciary Law.
At the October 7, 1999 court appearance, Mr. Kalenkowitz again apologized to Mills. Mills stated, “Thank you very much” and remanded him to the jail to serve out his sentence.
In summarily convicting Mr. Kalenkowitz of contempt, Mills failed to give Mr. Kalenkowitz any opportunity to make a statement in his defense and failed to make a mandate of commitment as required by Judiciary Law Section 752.
Mr. Kalenkowitz was released from custody after four days of incarceration. The invalid contempt finding and subsequent incarceration caused Mr. Kalenkowitz numerous personal repercussions.
Mills summarily sentenced Jason Kalenkowitz to jail for contempt, ostensibly for violating “several” warnings against interrupting Mills. The record does not substantiate the Judge's portrayal of the events, neither as to his warnings or as to any behavior by the defendant that would justify his actions. As the transcript shows, the defendant, a college student who had successfully defended himself on an Open Container charge, was apparently attempting to respond to Mills questions during a sermon about the defendant’s “attitude.” Mills' exercise of the summary contempt power in such circumstances, without complying with statutory due process, was a gross abuse of judicial authority. Compounding his misconduct, when he later realized he had wrongly convicted Mr. Kalenkowitz of Criminal Contempt under the Penal Law, Mills did not release him when he was brought back to court the following day, but simply changed the commitment order to reflect a conviction under a different statute and sent the defendant back to jail, where he remained in solitary confinement, without access to an attorney, for another three days. Even with an opportunity to reflect on his actions, and even when the defendant had apologized for a second time, Mills failed to remedy the harsh consequences of his actions in sending an acquitted defendant to jail.
Mills was being an obnoxious old man and tyrannical. Now we don't know Mills, wouldn't know him if we ran him over. He may be a great judge, he may be an awful judge. His conduct here was in error but it appears that everyone was having a pretty bad day. There's no evidence of any on-going problems, ethical or otherwise, with Judge Mills, that we know of. Judge's, such as Mills, have bad days and make mistakes. Kalenkowitz, the defendant, obviously knew how to push Mills' buttons. Mills overreacted and it returned to bite him on his ass. Mills was censured for his actions.
Still, this incident, as trivial as it may seem to some, does matter. Judge Mills failed to comply with due process. Due process requires notice of the allegation and an opportunity to be heard. Further, Judge Mills wrongly convicted the defendant of Criminal Contempt, a wrong Mills himself acknowledged. The consequence was that a college student remained in jail for three days without access to an attorney.
It amuses us when so-called conservatives downplay such actions. Conservatives are supposed to put individual rights above all else. Yet, when an accused suffers a deprivation of rights, it is simply no big deal. The accused is obviously guilty. The police would never arrest an innocent man so the accused must be guilty. Those defending individual rights are then called "liberals" or worse, "lefties" and "soft on crime."
As usual, so-called conservatives miss the point entirely. They miss the irony of the situation. They pay lip-service to our great traditions but try and undercut those traditions at every opportunity. Our individual liberties are based on hundreds of years of British Common Law and over two-hundred years of Constitutional Law. Men such as James Madison believed such liberties were important enough that the 4th Amendment was included in the Constitution.
The 4th Amendment forbids "unreasonable searches and seizures". That Amendment is a huge boon to criminals. It means that the government can't seize or search a person or his home because "we just know he's a bad guy." Perhaps the conservative philosophers in Troy may want to repeal the 4th Amendment. After all, if you haven't done anything, why should you care if you're seized or your home is searched.
James Madison - A soft-on-crime liberal. Each passing year makes it more and more obvious that conservatives would be much happier in the Soviet Union of 1935.
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