Bauer was charged with over forty acts of misconduct. Some of them were dismissed. Here are the main charges:
On Friday, May 12, 2000, respondent arraigned Daquan Austin, who gave his age as 16, on a charge of Open Container, for allegedly drinking a bottle of beer in a vehicle. (Subsequently, in connection with another matter, respondent learned that the defendant’s name was different from the one he gave and that he was actually 19 years old.) Respondent informed the defendant of the charge and then asked the arresting officer whether the defendant had been cooperative. The officer said, “Uncooperative.” Respondent then asked the defendant, “Sir, are you getting a lawyer on these matters?” and the defendant answered, “I don’t know.” Respondent set bail of $500 and told the defendant, “If you get bailed out, be here on Monday. If you can get a lawyer, bring one in on Monday and if you can’t, we will assign one on Monday. All right?” The defendant said, “All right.” Respondent issued a preliminary Order of Protection directing that the defendant stay away from the location where he was arrested for six months and committed the defendant to jail in lieu of bail until May 15, 2000. Respondent failed to advise the defendant of his right to counsel and assigned counsel and failed to take affirmative action to effectuate the defendant’s rights as required by Section 170.10 of the CPL.
On the return date, the defendant appeared without counsel; there was no appearance on the record by the prosecution. Respondent advised the defendant that if he pled guilty to the charge, respondent would impose a sentence of time served and a fine of $30. The defendant pled guilty and was sentenced accordingly.
Prior to accepting the defendant’s guilty plea, respondent did not say anything about the right to counsel and assigned counsel.
On April 7, 2000, respondent arraigned John F. Casey, who was charged with Trespass, Loitering, Open Container and Violation of an Order of Protection. After ascertaining that the defendant had not complied with the terms of an earlier sentence to a work order program, respondent told the defendant, “You need a lawyer on these matters. Given your gainful employment, if you can get a lawyer, hire one. And if you can, bring one in on Friday.” The defendant, whom respondent described at the hearing as an alcoholic and a crack addict and a “semi-regular” in the court, was employed by his father’s cleaning service and, on some previous occasions, had been represented by the public defender.
Without due consideration of the factors of pretrial release set forth in Section 510.30(2) of the CPL, respondent set unreasonably high bail of $25,000; committed the defendant to jail in lieu of bail until April 14, 2000, without advising him of his right to counsel and assigned counsel; and failed to take affirmative action to effectuate the defendant’s right to counsel, as required by Section 170.10 of the CPL.
On the return date, April 14, 2000, respondent contacted the jail and directed that the defendant not be returned to court that day. At 8:30 A.M., with no appearance by the defendant, a prosecutor or defense counsel, respondent stated on the record that Mr. Casey “is a plea and time served,” entered convictions for the defendant on the charges and issued an order releasing the defendant from jail, notwithstanding that the defendant had not pled guilty and was never brought back before the court.
On the record of the proceeding, there is no appearance by the prosecutor or defense counsel, and there is no record that the defendant agreed to the plea.
On June 14, 2000, respondent arraigned John F. Casey on new charges, Open Container and Failure To Appear. After noting the bench warrant based on the defendant’s failure to appear a week earlier, respondent asked the defendant, “Do you work or go to school?” and the defendant answered, “I work”; respondent made no other inquiry about the defendant’s financial or personal circumstances. Respondent set bail of $500 and committed the defendant to jail in lieu of bail for five days. Respondent said nothing about the right to counsel and assigned counsel and failed to take affirmative action to effectuate the defendant’s right to counsel, as required by Section 170.10 of the CPL.
On the return date, June 19, 2000, respondent contacted the jail and directed them not to bring the defendant back to court. Respondent stated on the record, with no appearance by the defendant, a prosecutor or defense counsel: “The matter of People against John Casey was a plea and time served on an open container matter.” Respondent entered a conviction for the defendant notwithstanding that the defendant had not appeared and had not pled guilty.
Later that day, Mr. Casey, who had been released from jail, came into court and asked what had happened to his case; respondent informed him that the case had been resolved.
On the record of the proceeding, there is no appearance by the prosecutor or defense counsel, and there is no record that the defendant agreed to the plea.
On July 7, 2000, respondent arraigned Kenneth Grant, who was charged with Unlawful Possession Of Marijuana. The defendant was one of five persons charged with possession of a single marijuana “cigar” in a motor vehicle (see also Charges IX, X and XII). There is no transcript of the arraignment. Without due consideration of the factors of pretrial release set forth in Section 510.30(2) of the CPL, respondent set unreasonably high bail of $20,000 and committed the defendant to jail in lieu of bail until July 10, 2000, notwithstanding that incarceration is not an authorized sentence for a first offense of Unlawful Possession Of Marijuana. Since a parole warrant had been filed against the defendant as a result of his arrest, the defendant would not have been released regardless of the bail set by respondent.
On July 10, 2000, the defendant was returned to court from jail. There was no appearance by the district attorney’s office or defense counsel. Respondent coerced the defendant’s guilty plea by telling the defendant that if he pled guilty at that time, respondent would sentence him to ten days and a fine and the defendant “would be out on Friday.” Without the benefit of counsel, the defendant pled guilty.
On March 9, 2000, respondent arraigned Sean Quackenbush, who was charged with Disorderly Conduct, a violation, and Resisting Arrest, a misdemeanor. After ascertaining that the defendant was not on probation or parole and was self-employed as a carpenter, respondent asked him, “Are you getting a lawyer?” and the defendant replied, “No.” Respondent told the defendant, “If you can get a lawyer, I would, because you need one.” Respondent failed to properly advise the defendant of his right to counsel and assigned counsel and failed to take affirmative action to effectuate the defendant’s rights as required by Section 170.10 of the CPL.
Without due consideration of the factors of pretrial release set forth in Section 510.30(2) of the CPL, respondent set unreasonably high bail of $25,000 and committed the defendant to jail in lieu of bail for one week. Later that day, a bail bond was posted and the defendant was released.
On March 10, 2000, respondent signed an Application for Assignment of Public Defender and/or Assigned Counsel. On March 30, 2000, the defendant appeared in court with retained counsel and pled guilty to Disorderly Conduct in satisfaction of both charges. Respondent imposed a fine of $95 and issued a final Order of Protection for the defendant to stay away from the location of the arrest for one year. Respondent sentenced the defendant to a fine of $300 (including a $50 surcharge and $10 victim fee) and ten days in jail, notwithstanding that, pursuant to Section 221.05 of the Penal Law, the maximum penalty for a first offense of Unlawful Possession Of Marijuana is a $100 fine and no incarceration, and respondent had no information that would have permitted him to impose a different sentence. Respondent knew or should have known that the sentence he imposed was in excess of the maximum sentence authorized by law.
That is just a small sample of the types of charges brought against Bauer and found to be true. You get the drift.
Here's what the Commission had to say:
The record establishes that over a two-year period, respondent engaged in a pattern of serious misconduct that repeatedly deprived defendants of their liberty without according them fundamental rights. Respondent ignored well-established law requiring judges to advise defendants of the right to counsel and to take affirmative action to effectuate that right. In numerous cases he set exorbitant, punitive bail for defendants charged with misdemeanors and violations, even where incarceration was not an authorized sentence. He coerced guilty pleas from incarcerated, unrepresented defendants who, if they refused to accept respondent’s plea offer, faced continued incarceration because of the unreasonably high bail he had set. He imposed illegal sentences in four marijuana cases, and on two separate occasions he convicted an incarcerated defendant in the defendant’s absence by announcing that the case was “a plea and time served,” although the defendant had not pled guilty. Respondent’s failure to recognize the impropriety of his procedures compounds his misconduct and suggests that defendants in his court will continue to be at great risk. Viewed in its totality, respondent’s conduct demonstrates a sustained pattern of indifference to the rights of defendants and establishes that his future retention in office “is inconsistent with the fair and proper administration of justice.” Matter of Reeves, 63 NY2d 105, 111 (1984).
The transcripts of arraignments conducted by respondent depict proceedings that bear scant resemblance to the procedures required by law. At arraignment, a judge is obliged to advise every defendant of the right to counsel and, except for traffic infractions, the right to have an attorney assigned by the court if he or she is “financially unable to obtain the same”; in addition, the judge must “take such affirmative action as is necessary to effectuate” those rights (CPL §170.10). We agree with the referee’s finding that, despite respondent’s familiarity with this critically important statute, respondent “did not fulfill his obligations under the statute either at the time of the arraignment or at subsequent court appearances” (Rep. 4) and committed numerous defendants to jail in lieu of bail without affording them this fundamental right.
Of course, that's not all they said. Being lawyers and judges, they went on for quite some time. Here's the decision in its entirety.
The decision is clear and comprehensive. It was not a railroad job. Some charges were dismissed and there are concurring and dissenting opinions on many of the charges. Also, it's important to remember that the Commission had transcripts from Bauer's court. They weren't dealing in second and third hand accounts. They could read exactly what Bauer did and did not do. Not much wiggle room for Bauer.
In Part-V, we'll discuss what Bauer did and whether or not it justified his removal from the bench. For those who argue "he got kicked off the bench because he was tough on criminals" you are wrong. Some have argued, "he was crooked." If crooked means some personal gain, then wrong again. For those who have formed an opinion before reading the decision of the Commission, well, your opinion is rather worthless, isn't it?
No comments:
Post a Comment