Queens District Attorney Main Office in Kew Gardens. Source: Queens DA Office

Colby Hamilton’s article, “Close Family Ties Between Queens Judges, Prosecutors, Raise Appearance Concerns” (August 7, 2018), is spot-on in throwing needed light on the workings of the courts of the County of Queens.

For 33 years, I served as a judge in Queens, first in the New York City Criminal Court and later in the New York State Supreme Court. Prior to that, for 17 years I tried cases in the courts of Queens. Accordingly, I am in a position to appreciate that, like Caesar’s wife, the very legitimacy of our courts requires that they “must be above suspicion.”

Queens prosecutor Robert Masters, quoted in the article, understands the importance of avoiding what he calls “reputational harm.” For the public prosecutor and the courts to suffer even the appearance of nepotism is too great a risk that the judiciary will fall victim to “reputational harm” with the resulting loss of legitimacy in the eyes of the public.

As W.I. and D.S. Thomas succinctly put it in what has come to be called the Thomas theorem, “If men [sic] define situations as real, they are real in their consequences.” In a similar vein, in the case of Tumey v. Ohio, 273 U.S. 510 (1927), where, like in the case of the Queens trial judges in the article, the existence of conclusive proof of judicial bias was lacking, but not its appearance, the words of Mr. Chief Justice Taft, speaking for the U.S. Supreme Court are worth repeating:

Every procedure which would offer a possible temptation to the average man [sic] as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.  (Tumey, 273 U.S. at 532).

When criticised, the tendency of prosecutors and courts, and that of their acolytes and apologists, to close ranks and “circle the wagons,” is all too common.  At this moment in history, when the courts are called upon to decide profound soul-searching questions, it is too late in the day for public relations.  Even the faintest whiff of corruption in the courts will undermine the rule of law.

Justice Brandeis said that “sunlight is the best disinfectant.”  Thank you, New York Law Journal, for providing that sunlight.

William M. Erlbaum is a retired justice of the state Supreme Court. He is an adjunct professor of behavioral science at CUNY and an adjunct professor of law at Brooklyn Law School.