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Foul-Mouthed Harangues Put Judge in Hot Seat
New Jersey Law Journal
June 24, 2008
An Essex County, N.J., judge's use of obscenities on the bench to get his point across is certain to get him disciplined. The only question is whether his conduct was bad enough to warrant a time-out.
That in turn depends upon whether the court system's disciplinarians find that personal tragedies and other stresses in Judge F. Michael Giles' life mitigate against a suspension -- the sanction imposed upon Wilbur Mathesius, the last judge disciplined for intemperate speech.
Giles, 64, a judge since 1991, must also counter an alleged pattern of behavior going back to 1998, when the Advisory Committee on Judicial Conduct cautioned him about rudeness towards litigants.
At a hearing on Wednesday before the ACJC, Giles apologized for his conduct and said it was an aberration caused by a series of stressful events, including health issues and two deaths in his family. But ACJC counsel Candace Moody said judges must uphold the integrity of the bench, regardless of pressure in their lives. "No matter how tired or vexed, judges should not allow their language to sink below a minimally acceptable level," Moody said, citing In the Matter of Joseph Sadofski, 98 N.J. 434 (1985), in which the state Supreme Court found the use of intemperate and offensive language in court warranted a reprimand despite the judge's claimed stress resulting from a caseload of 200 to 300 cases a week.
The current charges are that Giles hurled profanities at lawyers and litigants in court on three occasions. He is accused of violating Canons 1, 2A, 3A(2) and 3A(3) of the Code of Judicial Conduct and R. 2:15-8(a)(4) and (6), all relating to judges' decorum.
According to the ACJC complaint, filed last January, Giles erupted at Sebastian Bio, of Bio & Laracca in Orange, N.J., on April 10, 2006. Bio was representing Altereek Dunne on a bench warrant for several outstanding warrants. Before the matter was heard, Bio escorted Dunne to the Essex County Sheriff's Department for processing. Afterward, Bio learned from the Public Defender's Office that Dunne had been remanded to the sheriff's custody on several outstanding municipal warrants.
Bio appeared before Giles at around 3 p.m. When Giles said he could do nothing about Dunne's recent incarceration on the municipal warrants, Bio asked the judge to address only the Superior Court warrant.
After ascertaining the session was not on the record, Giles said, "I said get the [expletive] out of my courtroom. What the [expletive] don't you understand? Shut the [expletive] up and get the [expletive] out of here. I have a meeting this afternoon."
The ACJC complaint was amended to include an incident on Dec. 12, 2007, during settlement discussions in a real estate suit against a bank. Giles is alleged to have inquired of bank lawyer Diane Bettino, of Reed Smith in Princeton, after asking whether he was off the record, "Did you wake up on the wrong ... [expletive] ... side of the bed?"
The ACJC complaint also said Giles reacted badly to the initial ethics complaint, which prompted Assignment Judge Patricia Costello to move him from the Criminal Part to the Civil Part. On Feb. 5 of this year, Giles asked lawyers in the bank case whether they had read news articles about the initial complaint. When they said yes, Giles said he had told Costello he could just as easily curse at lawyers in civil cases as in criminal cases.
When Bettino reminded him he had cursed at her in the Dec. 12 incident, Giles claimed not to remember but remarked that he would call her as a witness at his ethics hearing since she seemed to have survived the incident and was faring well before him, the ACJC charged.
Finally, the ACJC added two counts in March charging Giles with rudeness to landlord-tenant litigants 10 years ago, which had prompted an ethics grievance. The ACJC had closed the matter with the letter of caution on Feb. 18, 1998, after Giles acknowledged that he had been discourteous and assured the panel he would not repeat the conduct.
At Wednesday's hearing, Moody said that Giles' conduct on all these occasions formed a pattern of discourteous behavior, calling into question his judgment and his ability to conform to ethics mandates. She said that the personal problems Giles raised in his defense were no excuse.
Giles' attorney, Thomas Ashley, who heads a firm in Newark, and Moody stipulated to the certifications of Bio and Bettino, who did not testify.
Ashley told the panel his client was in a "house of gloom" after the death in late 2004 of his 40-year-old daughter, leaving him and his wife to raise their daughter's two children, aged 5 and 10. A week later, he suffered the death of his mother-in-law.
Ashley gave a timeline to show a series of additional stresses in Giles' life. In January 2006, he lost sight in his left eye. That same year, his granddaughter's school shut down after repeated attempts by Giles and others to prevent its closure.
In March he and his wife and grandchildren began weekly family counseling. That same month, he reduced his work schedule from five days a week to four. In May 2006, he was diagnosed with glaucoma. In November 2006, he ruptured his aorta, requiring an aorta dissection.
And in November 2007 he underwent a brain angiogram due to doctor's concern that the glaucoma causing blindness in his left eye was due to a growth in the brain. The angiogram was unrevealing.
"He simply wasn't himself," Ashley said. "All of these problems affected him personally."
During his own testimony, Giles was contrite. "I'd like to convey my sincere apology for these events," he said, addressing Bio and Bettino individually. "There is no circumstance that I can think of that would excuse my behavior."
He called the Feb. 5, 2008, incident involving his remarks about the complaint a "bad joke." He added, "Ms. Bettino reminded me of the language and I said I didn't recall. I sincerely apologize for this and I'm sorry if I offended her."
ACJC member Daniel O'Hern, a former state Supreme Court justice now with Becker Meisel in Red Bank, N.J., asked Giles how he was doing now.
"Better," he said, adding that he and his family had undergone counseling. "My wife suggested going on disability but I didn't want that."
Mathesius, of Mercer County, was suspended for a month without pay in November 2006 for making injudicious comments on numerous occasions, including berating a jury for its verdict, criticizing a death penalty ruling by the court and denigrating a judge in public.
