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At a rare public viewing of the judicial discipline process, members of the Commission on Judicial Conduct on Friday expressed grave reservations over Troy City Judge Henry R. Bauer’s policies regarding bail and assignment of counsel. But what seemed to trouble some commissioners the most was Judge Bauer’s reluctance to admit � even after a referee sustained 49 misconduct charges � that his practices and procedures are wrong. The commission’s administrator and chief attorney, Robert Tembeckjian, is seeking Judge Bauer’s removal from the bench for what the agency claims is a chronic and systematic failure to respect the right to counsel and to reasonably consider bail. Mr. Tembeckjian contends that Judge Bauer routinely failed to advise defendants of their right to an attorney, persistently neglected to affirmatively ascertain that suspects were represented, and set outrageously high bails for no reason other than to coerce guilty pleas from people accused of minor crimes and offenses. In December, a referee for the commission, former Court of Appeals Judge Richard D. Simons, found that Judge Bauer had failed to respect the right to counsel in 21 instances, set excessive bail in 37 cases and coerced guilty pleas eight times. At Friday’s hearing, a picture emerged of a judge who would routinely decline to advise defendants of their right to counsel, set bails as high as $25,000 for offenses where the maximum fine was a fraction of that sum and then essentially make a deal with the accused: Plead guilty and go home, or assert your innocence and go to jail. Since the defendants were unrepresented, the commission suggested, they had little ability to challenge the bail decisions. “In Judge Bauer’s court, the shocking disregard of fundamental constitutional protections became routine,” Mr. Tembeckjian said, adding that Judge Bauer “gravely and irredeemably” undermined public confidence in the judiciary. “Time after time, he abandoned the high obligation of judicial office to be fair and impartial.” But Judge Bauer exhibited little remorse or regret, leaving the impression that if he remains on the bench his policies will remain largely unchanged. Only with reluctance did he promise to do a better job of advising defendants of their right to counsel. At the very end, Judge Bauer’s attorney, who consistently claimed his client is innocent of wrongdoing, told the commission that the judge would change his ways and that he “got the message.” The commission seemed skeptical, with one commissioner pondering why someone would insist he had done nothing wrong and then promise not to do it anymore. Friday’s proceeding at the Association of the Bar of the City of New York closely resembled an appellate argument, where counsel for both sides encountered a particularly “hot” and inquisitive bench. After Mr. Tembeckjian set forth his case for removal, defense attorney Robert P. Roche of Roche, Corrigan, McCoy & Bush argued that Judge Bauer did nothing for which he should be disciplined. Speaking on his own behalf, Judge Bauer told the commission that he is a good judge who works hard, spearheaded the establishment of drug and domestic violence courts, and deserves to remain on the bench. “I am a good and competent judge and not a judge who ought to be removed,” he said. Issue of Commission Bias In their oral presentation, neither Judge Bauer nor Mr. Roche touched on an issue that predominated their written submission: left-wing bias on the part of the commission staff. Mr. Roche, in his memorandum of law, portrayed the commission as an agency run amok and one shamelessly promoting the left-wing agenda of the American Civil Liberties Union. Mr. Roche accused the commission of attempting to make an example of a highly regarded judge whose practices comply with the law rather than the ACLU template. He implored the disciplinary agency to consider Judge Bauer’s reputation in the Capital District legal community and reject what he suggested are blatant misrepresentations and gross misunderstandings by left-leaning commission investigators and bureaucrats. And he implied that professional bureaucrats simply do not understand the practical implications of running an entry-level criminal court in a small upstate city. The same approach failed to persuade former Judge Simons, who acknowledged, without comment, Mr. Roche’s allegations of ideological bias and deemed irrelevant the statements of several prominent attorneys and judges who said Judge Bauer has consistently proven his fairness and decency since he was elected to the Troy City Court bench almost a decade ago. Now, Mr. Roche is waging what he admits is an uphill battle to salvage Judge Bauer’s career. With the sheer volume of charges upheld by Mr. Simons � 49 in all � the commission seems almost certain to take strong disciplinary action, perhaps even calling for Judge Bauer’s removal and permanent bar from ever again holding judicial office. If the commission does vote for removal, Judge Bauer has an appeal as of right to the Court of Appeals, and Mr. Roche said he will invoke that right. Yesterday, Mr. Roche brought Judge Bauer’s appeal to Manhattan, where his demand for an open hearing required the commission to move the proceeding from its own headquarters to borrowed space at the City Bar Association. The proceeding focused generally on Judge Bauer’s practices regarding CPL 170.70, which established the criteria for assigned counsel, and CPL 510.30, which establishes the criteria for bail. The commission alleges that Judge Bauer persistently violated both statutes. Mr. Roche insists that Judge Bauer is the victim of an ideological crusade orchestrated by the commission staff. He singled out an investigator/paralegal, Rosalind Becton, who previously worked for Prisoners Legal Services, and a prosecutor who was honored by the ACLU, Stephen Downs. Mr. Downs made international news last year when he got arrested after wearing a T-shirt with a peace slogan in a local mall. Mr. Downs, according to Mr. Roche, was represented by the ACLU � the same organization that represented one of the defendants complaining about Judge Bauer. Mr. Roche said in his memorandum of law that the ACLU-Downs connection explains “why Judge Bauer was singled out for the wrath of the American Civil Liberties Union and its New York branch.” “It is common knowledge that the American Civil Liberties Union and the New York Civil Liberties Union have had as an agenda item the issue of bail for the last two decades,” Mr. Roche said in his memorandum. “It has been a hot button issue in recent times for the NYCLU because it is claimed by them that bail is the rich man’s way to keep a poor man in jail.” Mr. Roche insisted that Judge Bauer never violated any defendant’s bail rights, and that he set bond in a manner consistent with the law and the discretion afforded the court. The key for Mr. Roche seems to be in convincing the commission to look beyond the bold content of the charges sustained by Mr. Simons and to take into consideration the context of Judge Bauer’s decisions and reputation. Much of Friday’s proceeding dealt with the lengths to which a judge must go to inform defendants of their right to counsel, and to place on the record the myriad factors that must go into a bail determination. Several commissioners demanded to know what amount of bail is “excessive.” “Basically, you don’t know how to define it, but you know it when you see it,” commission member Stephen R. Coffey of O’Connell & Aronowitz in Albany said to Mr. Tembeckjian. Appellate Division, Third Department, Justice Karen K. Peters, also a commissioner, repeatedly pondered how thoroughly a judge must, on the record, inquire into a defendant’s understanding of the right to counsel and his or her ability to make bail. She seemed especially bothered by Judge Bauer’s contention that it was sometimes unnecessary to spell out a defendant’s right to assigned counsel because the suspect was well aware of that right through prior encounters with the law. Commissioner Frances A. Ciardullo, a part-time town justice in Oswego County, said she routinely goes through a litany of questions to ensure the defendant is aware of his or her counsel right, and asked why Judge Bauer does not do the same. Lawrence S. Goldman, a defense attorney in Manhattan and member of the commission, suggested that the bails set by Judge Bauer were “inordinately high.” Commission member Raoul Lionel Felder noted that Judge Bauer frequently set bail in amounts far beyond the maximum fine that could have been imposed for the offense. At the end of the 90-minute proceeding, Commissioner Christina Hernandez, who is not an attorney, sought assurance that Judge Bauer recognizes that he has erred. “I don’t hear that he is doing anything different,” Ms. Hernandez said. “We need to know that after all this, after the referee’s report, after being brought up on all these charges that this judge . . . will do something differently. I heard a lot of roundabout kind of answers. I want to know directly: Does he see that he possibly did something wrong and he needs to correct it.” Mr. Roche responded: “His mother didn’t raise any fools. He got the message.” Several prominent members of the Capital Region legal community came out strongly for Judge Bauer in the hearing before Mr. Simons. Supreme Court Justice Thomas W. Keegan, the administrative judge for the district, and Rensselaer County Judge Patrick J. McGrath, who has some supervisory control over Troy City Court, both said they had never received a complaint about Judge Bauer. Rensselaer County Public Defender Jerome K. Frost, whose office represents four out of every five defendants appearing before Judge Bauer, said the judge has always been fair and reasonable. Veteran Albany defense attorney Raymond A. Kelly Jr. said Judge Bauer is “known as a man of integrity, a man of honesty” who is not “infected with black robe disease” and consistently treats criminal defendants “humanely.” Additionally, attorney Terence L. Kindlon said last week, while he was in Manhattan to receive a New York State Bar Association award, that Judge Bauer is among the fairest and best jurists he has encountered. But documents describing Judge Bauer’s alleged transgressions suggest that the problem is not with defendants who are represented by counsel, but those who are unrepresented. The commission’s determination may be issued by mid-March.

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