Published: November 27, 2007 11:21 pm      

NIAGARA FALLS: Restaino ordered removed

Commission cites abuse of judicial power in March 2005 incident

In a stinging, frequently explosively worded opinion, the New York State Commission on Judicial Conduct has recommended the removal of Judge Robert Restaino from the Falls City Court bench.

The recommendation, issued Nov. 13 and made public late Tuesday afternoon, said Restaino engaged in “an egregious and unprecedented abuse of judicial power” in March 2005 by putting 46 defendants behind bars after no one would take responsibility for a ringing cell phone in his courtroom.

The eight-page decision, supported by nine of the commission’s 10 members, was unrelenting in its criticism of Restaino. Commissioner’s wrote that Restaino behaved like “a petty tyrant” whose behavior constituted “a gross deviation from the proper role of a judge.”

Restaino’s lawyer, Joel Daniels, said the commission had reached the wrong conclusion about the judge.

“I disagree in the strongest possible terms with the commission’s decision,” Daniels said. “Judge Restaino was a credit to the bench and a valued and respected member of the Niagara Falls community, with a great record of accomplishment on and off the bench. With the exception of two hours, his record is spotless.”

Daniels said he had not spoken to Restaino since receiving the commission’s decision and did not know if the judge would appeal the commission’s recommendation. Attorney Terrence Connors, who will replace Daniels, told The Associated Press Restaino would exercise his right to appeal the decision to the state’s highest court, the Court of Appeals, which has the power to reduce the decision to censure instead of removal from the $113,900-a-year post.

Since 1978, the Commission has recommended the removal of 156 judges, 38 of them full-time judges like Restaino, across the state. The Court of Appeals has reviewed 85 commission recommendations since its creation and upheld those decisions 71 times.

Of the remaining 14 cases, two were increased from censure to removal. Twelve recommendations were reduced, while nine recommended removals were modified to censures.

Word of the recommendation rippled through the Niagara County legal community Tuesday.

“I’m disappointed,” said Niagara County District Attorney Matthew J. Murphy III. Murphy, who himself will become a County Court judge on Jan. 1 said, “I have a great deal of respect for Judge Restaino and I hope he’ll get through this.”

Restaino was presiding over proceedings in domestic violence court, on March 11, 2005, when what was believed to be a cell phone began ringing. A court transcript showed that Restaino asked that owner of the phone bring it to him on the bench.

“Everyone is going to jail, every single person is going to jail in this courtroom unless I get that instrument now,” Restaino said. “If anybody believes I’m kidding, ask some of the folks that have been here for awhile. You are all going.”

However, Restaino then decided to set bail for every defendant, including raising bails he already had set and imposing bail on defendants who were released on their own recognizance.

The decision touched off a furor in the courtroom and forced police to call in extra officers to keep order.

One by one, defendants came and stood up in front of the judge. One by one they said they didn’t know who had the cell phone. One by one they slowly walked to the front of the courtroom and turned to their left to go to jail for booking.

In all, the commission found that Restaino jailed 46 people creating a crisis in an already overcrowded city jail.

“We were playing Twister in here,” one jail booking officer said at the time.

Friends and family members of those in the courtroom began scrambling to bail out the defendants and some began contacting the Gazette.

A woman identifying herself as “Connie” said she went to the public safety building “along with 60 other people” to bail out her husband who had been in the courtroom when the cell phone rang.

“(Restaino) just caused so much financial problems for so many people,” Connie said. “Most of the people in there, are there for anger management classes. Do you think that is really going to help them keep their anger intact? It sure didn’t keep mine.”

The overwhelming majority of the commissioners investigating Restaino seemed to side with people like Connie. They said Restaino acted “out of pique and frustration” and said his conduct “transcended poor judgment.”

In it’s findings, the commission said Restaino agreed with some defendants who protested his actions.

“When one defendant said, ‘This is not fair to the rest of us.’ (Restaino) replied, ‘I know it isn’t,’ according to the court transcript. “Another defendant told (Restaino), ‘I know this ain’t right.’ ”

The commission faulted Restaino for not recognizing what it called the special circumstances of some defendants who had to go to work, doctor’s appointments or to pick up children from school.

Restaino told the commission “he knew that he had no legal basis for (his actions). He expalined that he simply focused on attempting to locate the phone’s owner and was frusutarted by his inability to do so.” The judge told the panel he was under stress in his personal life.

The judge told the commission he returned to court later in the later in the day to release all the defendants who had been jailed. However the commissioners challenged Restaino on that, saying that he began making arrangements to release the defendants only after court clerks begin fielding calls from reporters about what had happened.

During a hearing before the commission, Restaino told the panel his conduct “was improper and inexcusable.”

The commission went a little further in describing the judge’s conduct. The commissioner’s said Restaino engaged in “an egregious and unprecedented abuse of judicial power ... in a bizarre, unsuccessful effort to discover the owner of a ringing cell phone.”

Commissioner’s said Restaino’s conduct “caused irreparable damage to public confidence in the fair and proper administration of justice in his court.”

“It is sad and ironic that even as (Restaino) was scolding the defendants for their behavior ... in repeatedly berating the selfish’ and ‘self-absorbed’ individual who ‘put their interests above everybody else’s’ and ‘doesn’t care what happens to anybody’, (Restaino) failed to recognize he was describing himself,” the commission decision said.