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The New York Commission on Judicial Conduct is calling for the removal of a popular upstate City Court jurist who, the panel said, repeatedly abused his power and systematically denied criminal defendants appropriate bail and the benefit of assigned counsel. The disciplinary agency adopted the report of a referee who sustained 49 misconduct charges against Judge Henry R. Bauer. In a divided opinion, the commission said Bauer is unfit for the bench. He showed a pattern of setting extraordinarily high bail for no apparent purpose other than to coerce guilty pleas, and he persistently neglected counsel rights, the commission said. Bauer’s behavior warrants his ouster and a permanent bar on ever again holding judicial office, it said. “Viewed in its totality, [Bauer's] conduct demonstrates a sustained pattern of indifference to the rights of defendants and establishes that his future retention in office” is contrary to the fair administration of justice, the majority said in its determination. The entire nine-member panel agreed that Bauer is guilty of misconduct. But it split six to three on the sanction. Three members called only for a public censure. Bauer said he will challenge the determination, made public Monday, at the Court of Appeals, where he has a right to appeal. Typically, judges targeted for removal are suspended by the court with pay while the matter is pending. Since 1978, the court has reviewed 79 commission determinations, dismissing charges only once. It has reduced the proposed sanction 12 times. “On some level, it would be easier if I was this harsh, tough-on-bad guys judge they think I am,” Bauer, a former assistant public defender, said in an interview. “But it just isn’t true.” Some of the most prominent defense attorneys and judges in the Capital region have come forward in support of Bauer. They insist he is fair and reasonable and suggest that the charges reflect, at most, his failure to make an adequate record or spell out defendants’ right to counsel. They note that Bauer, who has served for 10 years, was instrumental in establishing the first drug court in the region and the first domestic violence court upstate. Brian D. Premo, an Albany defense attorney and former Rensselaer County prosecutor, said he has appeared before Bauer on countless occasions. Premo, like others, said Bauer is not a harsh jurist. In fact, Premo said, Bauer frequently goes out of his way to help defendants and less experienced defense attorneys navigate the Rensselaer County probation system. “I think the tragedy in this case is that if you look in a vacuum at what he did, you might take issue,” Premo said. “On the other hand, if you look at all the work he has done over the years, and all the people he has dealt with and the manner in which he has dealt with people, you would realize that what they are claiming is not the case.” The Bauer prosecution marked the first open judicial disciplinary matter in New York state since Brooklyn Criminal Court Judge Lorin Duckman’s in 1997. Bauer said he welcomed public scrutiny of his disciplinary hearing. He became only the eighth judge in 25 years to waive confidentiality. His hearing before a referee in Albany last summer and before the full commission in Manhattan in January provided a rare public view of the judicial disciplinary process. The Albany hearing proceeded much like a trial, with attorneys for both sides offering evidence and questioning witnesses. It ended with a determination that Bauer was guilty of multiple counts of misconduct. The Manhattan matter was more like an appellate argument, where attorneys for both sides argued primarily over what sanction, if any, was most appropriate. ‘SHOCKING DISREGARD’ Commission Administrator Robert H. Tembeckjian, who argued the case in Manhattan, portrayed Bauer as a judge who showed a “shocking disregard of fundamental constitutional” safeguards that “gravely and irredeemably” undermined confidence in the judiciary. Chief Attorney Cathleen S. Cenci represented the commission at a hearing last summer when it presented the charges to the referee, retired Court of Appeals Judge Richard D. Simons. At a hearing, Cenci said Bauer “failed to properly advise defendants of their rights at arraignment, failed to take steps to effectuate their rights to counsel, and jailed the defendants in lieu of exorbitant bail amounts on minor charges, without due consideration to the statutory factors controlling the bail determination.” Staff attorney Kathryn Blake also represented the commission. Bauer’s attorney, Robert P. Roche of Roche, Corrigan, McCoy & Bush in Albany, characterized his client as a respected and scholarly local judge who manages a huge caseload with dignity and decorum, but was misunderstood by bureaucrats. Roche contended that most of the charges involved matters of judicial discretion where the commission lacks authority. He portrayed Bauer as a victim of a left-wing, pro-defense bias on the part of commission investigators who were blinded by ideology and hindered by their lack of real-world legal experience. Referring to judges and defense lawyers, he asked, “How can they be so wrong and these people — who sit in the back of the courtroom and don’t even know they are in a court of record — be so right?” Some commissioners’ remarks showed that the sheer volume of the charges weighed heavily against Bauer, as did his aversion to admitting that his procedures needed improvement. Simons found that he had neglected to respect the right to counsel in 21 instances, set excessive bail in 37 cases and coerced guilty pleas eight times. Evidence showed that Bauer set bails as high as $25,000 for offenses where the maximum fine was a fraction of that amount and that he routinely neglected to advise defendants of their right to counsel on the grounds that they were repeat offenders and well aware of their rights. At a January hearing at the Association of the Bar of the City of New York, Bauer appeared defensive and unapologetic, even though the commission was clearly looking for some assurance that he understood there was a problem with his procedures and was committed to a different course. Only under pressure, and seemingly with considerable reluctance, did the judge come even close to admitting that his procedures could be better and that he would perhaps follow a different course in the future. The decision released Monday reflected that discourse and apparent disconnect. “In responding to the Commission’s questions, he had the opportunity to demonstrate that he understood the importance of strict adherence to the statutory mandates and recognized that his procedures were inadequate, but appeared unable or unwilling to do so,” the Commission said. “The conclusion is inescapable that [Bauer's] future retention on the bench would continue to place the rights of defendants in serious jeopardy.” Still, the report released Monday underscored the different perspectives on Bauer’s conduct and misconduct. In a concurring opinion, Commissioner Raoul Lionel Felder of Manhattan wrote, “What is disturbing is that [Bauer], at this late time, neither acknowledges his mistakes nor clearly indicates that he has any intention of changing his methodology. He did not inspire confidence that he has learned anything from the proceeding.” Felder said Bauer’s “consistent, pernicious and unremitting violations of the rights of defendants who appeared before him” particularly impacted the poor, since it was they who could not afford high bail and consequently either needlessly languished in jail or pleaded guilty just so they could go home. Urging censure rather than removal were commission members Karen K. Peters, a justice of the Appellate Division, 3rd Department; attorney Lawrence S. Goldman, a white-collar criminal defense lawyer in Manhattan; and non-lawyer Christina Hernandez, a social worker who also serves on the state Crime Victims Board. Justice Peters acknowledged that Bauer often set excessive bails but said those decisions stemmed not from malice but from a “sincere, if misguided, belief that the bail amounts he set were appropriate and necessary to ensure the defendant’s return to court.” Bauer “did not demean or disparage defendants,” Peters wrote. “Rather, he was consistently courteous. I believe that he will adjust his practices as guided by our determination.” Goldman said he is reluctant to intrude on areas of judicial discretion, such as the setting of bail. He also said Bauer should not be penalized for refusing to express remorse. Bauer’s “defense of his bail decisions … raised legitimate legal and factual issues,” Goldman said. “The Commission should be careful not to send a message that discourages judges from offering a vigorous defense of their actions.” Hernandez said Bauer’s “pervasive record of misconduct warrants a severe sanction.” But she said there was no evidence of bias, vindictiveness or malicious intent. Rather, she said, he “acted with misguided zeal in protecting his community.” Roche said Bauer has difficulty apologizing because he does not believe he ever violated anyone’s rights and in fact took pains to protect those rights. The prevailing opinion was signed by Chairman Henry T. Berger of Manhattan and Stephen R. Coffey of Albany, Alan J. Pope of Binghamton, Court of Claims Judge Terry Jane Ruderman, Schroeppel Town Justice Frances A. Ciardullo and Felder. In a statement Monday, Bauer said that while he disagrees with the commission, “I do not dispute their role and I do not begrudge them their opinion.” Tembeckjian said he looks forward to defending the commission at the Court of Appeals. “There are very important issues at stake in this case,” Tembeckjian said, declining to comment further.

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