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326. Unrestrained Restaino

One of the truly gratifying things about maintaining a blog is the way judges clamor to see their names up in pixels.  They compete with each other to find themselves immortalized in the Squarespace servers.  You can sense the spirit of determination underlying such spectacular and ultimately successful efforts as this, brought to my attention by two different readers:

2.    Respondent presided in the Domestic Violence Part on a weekly basis from 1999 through March 11, 2005.  The Domestic Violence Part handles cases of defendants who, after arraignment on charges involving violence against family members, have been screened to determine whether they are eligible for a court-supervised, 26-week program of counseling and education.  If accepted into the program, defendants are required to refrain from using drugs or alcohol, to undergo counseling and testing, and to report to court on a weekly basis so their progress can be monitored.  As a matter of practice, defendants in the Domestic Violence Part are released each week on their own recognizance unless they violate a condition of participation, in which case they face the possibility of sanctions, including the revocation of their release and the imposition of bail.  When defendants appear in the Part, they are generally required to remain in the courtroom until the completion of all the proceedings that day, even after their own cases have been concluded.

3.    Shortly after 9:00 AM on March 11, 2005, respondent took the bench in the Domestic Violence Part.  About 70 cases were scheduled, and approximately 70 people were in the courtroom.  In addition to defendants, also present were defense attorneys and prosecutors, court administrative personnel, court security officers, and representatives from counseling programs.  The courtroom was open to defendants and others entering and leaving.

4.    For about 45 minutes, respondent handled in a routine manner eleven cases involving defendants who were participants in the Domestic Violence Program.  In accordance with the customary procedures, respondent questioned the defendants, released them on their own recognizance and directed them to remain in court until the proceedings were concluded.  At approximately 10:00 AM, a device that appeared to be a cell phone rang in the back of the courtroom.  Addressing the defendants in the courtroom, respondent stated:

Now, whoever owns the instrument that is ringing, bring it to me now or everybody could take a week in jail and please don’t tell me I’m the only one that heard that.  Mr. Martinez, did you hear that ringing?...

Everyone is going to jail; every single person is going to jail in this courtroom unless I get that instrument now.  If anybody believes I’m kidding, ask some of the folks that have been here for a while.  You are all going.

 5.    When no one took responsibility for the ringing phone, respondent directed that everyone remain in the courtroom and then took a five-minute recess while court security attempted to locate the phone.  An officer stood at the doorway to prevent anyone from leaving the courtroom.  Prior to that time, there had been traffic in and out of the courtroom.

6.    Notwithstanding the recess, respondent did not withdraw his threat to send all of the defendants to jail if the owner of the phone was not discovered.

7.    When respondent returned to the bench, he was told that the phone had not been located.  Respondent then asked Reginald Jones, the defendant who had been standing before him when the phone had sounded, if he knew whose phone it was.  Mr. Jones replied, “No.  I was up here.”  Although respondent knew that Mr. Jones did not have the phone that had been ringing, he revoked Mr. Jones’ recognizance release, set bail at $1,500 and committed him into custody.

8.    Respondent proceeded to call the remaining cases on the calendar and then to recall the cases of the eleven defendants who had been released on their own recognizance earlier that morning.  Respondent questioned each defendant as to his or her knowledge of the phone.  After each defendant denied having the phone or knowing whose it was, respondent revoked the defendant’s recognizance release and reinstated bail; he set additional bail for two defendants who were previously released on bail.  In total, he committed 46 defendants into custody.  In five of the cases, he revoked the defendant’s release and committed the defendant with little or no discussion.

9.    Three of the defendants committed into custody were making their first appearance in the Domestic Violence Part that day.  The remaining defendants had regularly appeared in the Part as required; 15 defendants had previously appeared on at least a dozen occasions as required in connection with the program; one defendant had appeared 25 times and was one or two weeks away from completing the program.  Only one of the defendants committed into custody had an attorney who was present.

The Respondent in all this was Judge Robert M. Restaino of the Niagara Falls City Court, who had apparently been driven insane by the discordance of the constant clashing rumbles of the falls and the tour busses and was consequently hypersensitive to noises.  Here's the New York Times on the episode, and here's the AP.

Once again we're reminded just how far a judge has to go before he or she faces a serious risk of being removed from the bench.  You have to go to the extreme of experiencing "two hours of inexplicable madness" in a packed courtroom with a court reporter present before the Commission on Judicial Conduct will take the least notice of you.  Sort of like a teenager trying to shock her old hippie Mom, or Damien Hurst - really, you have to try so hard.

And even then there will always be defenders of a judge's right to abuse people "without any semblance of a lawful basis": the Commission's ruling drew a dissent as to the sanction of removal.  Its chair, a well-known divorce lawyer, declared that Judge Restaino had "has an impeccable reputation as a dedicated, fair, hard-working jurist with great integrity" - an opinion as weirdly inexplicable as the neighbors who insist the serial killer was "pretty nice."  I'm sure Judge Restaino has many fine qualities, but an impeccable reputation is no longer one of them.

Posted on Thursday, November 29, 2007 at 12:16AM by Registered CommenterJoel Jacobsen in , | CommentsPost a Comment

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