Since 1989, only 10 Connecticut judges have been sanctioned after being involved in hearings before the state Judicial Review Council. Soon, one more name may well be added to the list.
Last week, New Haven Superior Court Judge William Holden admitted to three counts of judicial misconduct linked to tardy opinion-writing. He was accused of taking more than two years to respond to a request by the attorney for a man convicted of sexual assault. Assistant Public Defender Alice Osedach had made a motion for articulation on June 26, 2009, most likely asking the judge to elaborate on key evidentiary rulings or post-verdict motions.
Reminder notices to Holden from the Appellate Court clerk’s office, and letters from Osedach produced no articulation. The defense attorney received no response until the summer of 2011 — and that came only after Chief Justice Chase Rogers sent a letter to Holden, according to Scott Murphy, executive director of the Judicial Review Council.
Articulations are often a critical step, and the lack of one can be fatal to an appeal, according to top appellate lawyer Wesley W. Horton, of Hartford’s Horton, Shields & Knox. “Under the rules as they currently exist, if there was some question about the underlying opinion, the lawyer had a duty to move for a motion for articulation, and not proceed until that’s taken care of,” Horton said.
The defendant in the criminal case, Christopher Shaw, is now serving a 15-year sentence for first-degree sexual assault. He presented a handwritten statement to the Judicial Review Council, claiming that “to my [detriment], the court has unfairly delayed my appeal for two years.”
Council Chairman Wayne Keeney, a Bridgeport criminal attorney, said three other criminal defendants have made similar complaints against Holden. He set a hearing date of Sept. 5, at which Murphy will present the council’s case and Judge Holden will be permitted to testify about mitigating factors. After that, the 14-member council made up of attorneys, judges and regular citizens will decide on a sanction.
In 2009, the JRC suspended then-Hartford Community Court Judge Curtissa Cofield for 240 days after she was charged with drunk driving and went on to launch a profanity-laced tirade against her arresting officers. Other judges over the years have faced sanctions ranging from public censures to suspensions ranging from five to 60 days.
At one point, Keeney asked Judge Holden whether he understood the full range of sanctions the JRC could impose. “It could issue an admonishment, it could issue a public censure, or a suspension for a term of up to one year, a suspension for a longer period, or recommend your removal from office. Do you understand that?” Keeney asked.
Holden responded, “I do now sir, yes.” He added that he recognizes such sanctions are within “the power of this great commission.”
The hearing on July 18 in the Legislative Office Building was not without its share of drama.
Almost immediately, the council went into executive session for half an hour while Judge Holden and New Haven defense attorney William F. Dow conferred. The small public audience — and CT-N camera personnel — were cleared from the hearing room.
The hearing resumed at noon. Dow, who had apparently been retained at nearly the last minute, candidly told the council he was not prepared, and asked for a continuance. But given that the council had found probable cause against Holden back on May 16, and given that the crux of the case centered on long delays, Dow expected his request for more time to be rejected. It was.
Keeney said Holden could try the matter now, or enter a plea and cross-examine the council’s witnesses at the subequent mitigation hearing. Dow, who was retained by former Gov. John T. Rowland when he faced impeachment, is one of the top criminal defense lawyers in the state. However, without additional time to prepare a case, he and Holden opted to admit to the charges.
Next came an unusual series of role reversals. Usually it’s Holden who is questioning a defendant in a plea colloquy. In this unusual setting, the judge had to assure attorney Keeney that he was freely admitting to the charges — charges instigated by a prisoner that Holden sentenced years ago.
On the first count, Holden was charged with violaton of Canon 3(A) 5 of the code of Judicial Conduct, by failing to answer the motion for articulation in a timely manner “thereby neglectfully performing the duties of a judge. Judge Holden, do you admit that charge?”
Holden: “Yes, I admit that.”
Count two was similar, “failing to dispose promptly of the business before the court.” The third count was “failing to perform his judicial duties competently and diligently.”
Sometimes speaking in a near-whisper, Holden responded to the second and third count, “Admit.”
Osedach, the public defense appellate lawyer for the prisoner who made the complaint against Holden, did not respond to repeated requests for comment.
But Daniel J. Klau, an appellate lawyer with McElroy Deutsch Mulvaney & Carpenter in Hartford, said the motion for articulation has an important role in Connecticut appeals, moreso than in any other state.
Lawyers are required to request an articulation of a trial judge’s opinion whenever some aspect is ambiguous. Appellate courts have declined to rule on civil and criminal appeals when the lawyer has not requested an articulation, and the court deems the record inadequate, Klau said. Thus, the current “best practices” of diligent lawyers is to err on the side of requesting too many articulations.
“This is not humdrum – this is a big deal,” Klau said. “Lawyers across the board — civil, criminal – are constantly complaining about certain judges who just take too long to get opinions out. This is at all levels, the trial court, Appellate Court, Supreme Court – it’s almost a constant refrain among members of the bar. They’re all representing clients, pro bono and paid, and the old saying about justice delayed really applies.”
He said there is no specific number of days in which a judge is required to issue an articulation.
Klau, who is a member of the Appellate Advocacy Section of the Connecticut Bar Association, is joining a request to amend the current rules so that an articulation can be requested from an appellate court. “Basically, there is no 120-day rule for articulations, like there is for other judicial opinions,” Klau said. “That’s one reason the Appellate Advocacy Section is strongly suggesting a change in the rule, so lawyers and their clients are not punished for something the judges failed to do.”
Holden’s case is unusual in the history of reported Judicial Review Council decisions. Only about a dozen cases have gone to a full hearing since the council was established in 1989. One judge was cleared of charges and 10 were sanctioned. In 2007, Superior Court Judge John Driscoll was censured for failing to issue judicial opinions within the 120-day rule for deciding cases. •