The City of Troy, New York, "Where Henry Hudson Turned Around."

Monday, August 22, 2005


Finally, we get to the meat of the debate. Should Bauer have been stripped of his judgeship and should he be running for elected office?

Since Bauer's removal was sustained by the Court of Appeals, a variety of people have expressed their opinion on this issue. A daily reading of The Record's Sound Off is evidence, anecdotal at least, that most people do not know what they are talking about when they express an opinion on Bauer.

Many critics of Bauer say he was "crooked" or corrupt. To us, crooked emplies some financial benefit and that is certainly not the case. No one has ever suggested, nor is there any evidence, that Henry Bauer was "on the take".

Conversely, Bauer apologists claim he was removed because he was "tough on criminals". Again, that suggestion is not born out by any evidence.

Lets proceed on the theory that the claims the Commission sustained did occur. The fact it is Henry Bauer is incidental.

Here's what Bauer did:

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 plea and time served, although the defendant had not pled guilty.

The conclusion is inescapable that respondent abused the bail process by using bail in a coercive, punitive manner. Repeatedly, after making no more than a perfunctory inquiry into the defendant's personal circumstances, respondent set bail in amounts for violations and misdemeanors that were so exorbitant that they were tantamount to no bail, bore no reasonable relation to the statutory criteria and compel an inference that respondent's purpose was an improper one. In many cases, defendants were unemployed or indigent, and thus their appearance in court could have been secured by a much lesser bail amount.

On two occasions respondent convicted an incarcerated defendant in the defendant's absence by announcing on the record that the case was a plea and time served. We are unpersuaded by respondent's explanation that on both occasions an assistant public defender consented to the procedure for security reasons, particularly since there is no appearance by defense counsel on the record and no indication that the defendant was even represented by the public defender's office in these matters. In any event, such a procedure -- admittedly concocted to avoid another court appearance by a defendant whom respondent described as a semi-regular in his court -- was completely inappropriate in the absence of any documentation that the absent defendant had actually consented to the plea.

In four cases where defendants were charged with Unlawful Possession Of Marijuana, respondent committed the defendants to jail in lieu of high bail and, thereafter, after they had spent several days in jail, he imposed fines that exceeded the legal maximum and jail sentences of time served or ten days, notwithstanding that incarceration is not authorized for a first or second conviction of this offense. Significantly, respondent testified that he would probably not have accepted their guilty pleas at the arraignment, thereby insuring that these defendants would spend time in jail for an offense deemed so minor that incarceration is not an authorized sentence.

Before we pass judgment on Bauer, we have to determine if the charges sustained by the Commission are true. Thexerciseasy excercise as a fact finder has investigated the matter, held hearings and found the charges true. The decision was also upheld by the state's highest court. The burden should be on those supporting Bauer to now prove he didn't abuse his authority. If you have any evidence to the contrary, by all means, share.

The defense of Bauer, at least in the popular imagination, is that he was "being tough on crime!" While not quite accurate, lets look at that for a moment. Many people have expressed the opinion that what Bauer did was OK because he did it to people that are "bad". Taken to its logical conclusion, it should have been OK for Bauer to order defendants to be taken out back and pistol-whipped. After all, why stop at just a bit of judicial vigilantism?

As for the defendants being bad....that's a rather immature response. People have rights and its merely logical that "bad people", people who are arrested, will have a greater chance to exercise those rights than people who abide by the law. That's the system we have created through the United States Constitution, the state constitution and our laws. Of course, everyone else hauled before a court is a "scumbag, trash, dirt!" However, when it's your friend, son, daughter or other relation then a grave miscarriage of justice has occurred. If Congressman Sweeney's son had been brought before Bauer do you think the defendant would have received the same treatment received by others?

Ideological conservatives should have been first in line to criticize Bauer. After all, Conservatives denounce activist judges all the time. What was Bauer other than an "Activist Judge," creating some laws and ignoring others?

Ultimately, Bauer forced his own removal from the bench. When questioned about many of his abuses he failed to state that those abuses would end. The Commission had little incentive to slap his wrist because Bauer gave no indication he would ensure the rights of defendants in the future. In time, Bauer would have been back before the Commission.

If you believe in the US Constitution and the rights of individuals, you have to support Bauer's removal. Otherwise, you are only paying lip service to the ideals our forefathers fought and died for.

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