Attorneys on both sides of the Gerald P. Garson prosecution endured a severe grilling by the New York Court of Appeals Tuesday as the judges in Albany consider whether the former Supreme Court justice can be prosecuted criminally for acts that began with a violation of the Rules of Judicial Conduct.

Garson, accused of accepting bribes and kickbacks from a matrimonial attorney, is fighting to limit his criminal exposure. The prosecution is seeking to reinstate six felony and two misdemeanor counts grounded in the Rules of Judicial Conduct, for which there can be no criminal sanction. The legal conundrum distills as follows:

  • Under the Rules of Judicial Conduct, judges are not permitted to engage in ex parte communications and they are not permitted to exploit the prestige of their office.
  • The Court of Appeals held in People v. La Carrubba, 46 NY2d 658 (1979), that the rules cannot be used to criminally prosecute a judge. In fact, the preamble makes clear that the ethics rules are neither designed nor intended to support a criminal prosecution.
  • It is alleged that then-Justice Garson violated his duties by engaging in ex parte communications with a divorce lawyer and improperly lent the prestige of his office to advance a private interest. But the violation of those ethical duties allegedly spawned criminal conduct. So the question centers on whether a judge has immunity from prosecution because the roots of his misconduct are in the ethics code.