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A deeply divided New York Court of Appeals Thursday removed from the bench a popular upstate city judge accused of neglecting counsel rights and setting outrageously high bails. The judges agreed that Troy City, N.Y., Judge Henry R. Bauer had committed misconduct. But they split 4-3 on whether his misconduct warranted lifetime banishment from the judiciary and whether the Commission on Judicial Conduct ought to be second-guessing the discretionary bail decisions of trial judges. The commission itself split 6-3 on similar issues. Thursday’s ruling in Matter of Henry R. Bauer, 125, brings to an end a lengthy and unusual prosecution of a judge who demanded a rare public hearing, insisted he had done nothing wrong and accused the commission of promoting an agenda of the American Civil Liberties Union rather than the law. In the end, Bauer’s stubbornness weighed heavily against him. “Petitioner’s apparent lack of contrition is telling,” the majority said in an unsigned opinion. “[H]is utter failure to recognize and admit wrongdoing strongly suggests that, if he is allowed to continue on the bench, we may expect more of the same.” Even a dissenting judge, Robert S. Smith, took issue with Bauer’s “outraged defiance” and “ill-judged … attempt to show that his disciplinary problems stemmed from an unholy alliance among the Commission’s staff, the Commission’s referee and the American Civil Liberties Union.” The 39 misconduct charges upheld against Bauer essentially fell into two categories: more than two dozen cases where the commission found that the judge set excessive bail and several cases where he failed to advise defendants of their right to counsel. In general, Bauer was accused of abusing his bail discretion to coerce guilty pleas from unrepresented defendants. One case cited by the commission and Court involved a man who was charged with a violation for riding his bicycle on a sidewalk without the appropriate lights. Even though the maximum penalty for that offense was a small fine, Judge Bauer sent the man to jail for seven days in lieu of $25,000 bail, records show. “Punishing people by setting exorbitant bail, particularly where the offense does not carry a jail sentence, demonstrates a callousness both to the law and to the rights of criminal defendants,” the majority said. “Moreover, when coupled with a failure to advise these defendants of their right to assigned counsel, petitioner’s imposition of punitive bail all but guaranteed that defendants would be coerced into pleading guilty: it was the only way to get out of jail.” Signing on to the majority opinion were the four most senior judges: Chief Judge Judith S. Kaye and Judges George Bundy Smith, Carmen Beauchamp Ciparick and Albert M. Rosenblatt. The majority was clearly troubled by Bauer’s apparent reluctance to admit wrongdoing and his lawyer’s persistent claim that the commission and its referee, former Court of Appeals Judge Richard D. Simons, were biased and influenced by the ACLU. One of the former commission attorneys who instigated the case against Bauer, now-retired Stephen Downs, has been active in liberal causes and honored by the ACLU. “Impugning the integrity of the Commission staff and the Referee … does not distract us from the considerable proof against petitioner,” the majority said. COMMISSION’S AUTHORITY The three newest judges — Robert Smith, Susan Phillips Read and Victoria A. Graffeo — dissented. Read wrote one dissent, joined by Graffeo. Smith wrote a separate dissent. Read and Graffeo took strong exception with the findings regarding Bauer’s bail decisions. “The Commission’s allegation that petitioner set excessive bails impinges on his discretion as a judge and is, in our opinion, outside the Commission’s scope of authority,” Read wrote. Although Read and Graffeo agreed that “[b]ail determinations are not completely outside the Commission’s scope of authority,” they said there are limits that, in this case, the agency exceeded. They also suggested that the “snap-shots” of Judge Bauer’s performance offered by the commission were not necessarily representative. Read and Graffeo noted that Judge Bauer set about 2,500 bails annually in the 10 years he was on the bench and questioned “whether the 29 instances of excessive bail alleged by the Commission so permeate petitioner’s practice as to warrant removal rather than censure.” Further, they said that Bauer had never been cautioned about his conduct, that the Fund for Modern Courts observed him on the bench 64 times and issued a “glowing review” of his performance and that the local defense bar supported him. Additionally, Bauer has been praised by his judicial superiors and the Rensselaer County Public Defender, and is credited with establishing the first drug court in the region and the first domestic violence court upstate. ‘UNFORTUNATE’ RESPONSE While Read and Graffeo were more bothered by Bauer’s neglect of counsel rights than his bail decisions, Smith said in his dissent that he is “much more troubled by petitioner’s practices in setting bail.” Smith said some of those decisions, especially where it appeared that Bauer improperly used high bail “to give a brief taste of jail to defendants he thought would benefit from it … gives me serious pause.” Yet, like his colleagues in dissent, Smith said bail decisions are discretionary “and judges should not be disciplined for exercising their discretion, even where they have repeatedly exercised it poorly.” Robert H. Tembeckjian, administrator and counsel to the commission, said in a statement yesterday that while “it is never pleasant or easy to remove a judge from office … sometimes it must be done.” This, he said, was such a case. “It is egregious when a judge repeatedly fails to accord litigants their fundamental rights,” Tembeckjian said. “It is especially serious when a judge repeatedly fails to advise defendants of the right to counsel, sets excessive bail and coerces guilty pleas.” Albany attorney Robert P. Roche of Roche, Corrigan, McCoy & Bush represented Bauer. Roche, who was not immediately available for comment Thursday, has consistently maintained that Bauer never violated anyone’s constitutional rights. He has said the charges against his client arose out of ignorance on the part of a commission that does not understand how a busy upstate criminal court functions and an institutional bias against judges who seem to embrace conservative principles. Smith characterized Bauer’s response to the charges as “most unfortunate.” “He might have spared himself much of his present trouble had he reacted to the Commission’s investigation by saying, in substance: ‘I’m sorry. I made mistakes. I won’t do it again,’” Smith wrote. Bauer, who was suspended with pay pending his appeal, was endorsed for re-election and remains on the Nov. 2 ballot. However, Rensselaer County Republican Chairman John Casey said yesterday that since Judge Bauer is no longer qualified to serve, the party will run a replacement candidate.

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