Published: April 22, 2008 11:21 pm      

RESTAINO: Awaiting final judgment

State Court of Appeals hears final plea to keep City Court judge on bench

ALBANY — In the end, all Niagara Falls City Court Judge Robert Restaino’s attorney could do was ask New York’s highest court to give his client one more chance.

“Don’t impose the judicial death penalty here,” Terrence Connors said. “(Restaino) has so much more to give.”

Now six of the seven justices of the New York State Court of Appeals will consider whether to reverse a decision by the State Commission on Judicial Conduct calling for Restaino’s removal from the bench for what nine of the 10 commissioners called “an egregious and unprecedented abuse of judicial power.” Justice Eugene Pigott, who is from Erie County and is acquainted with Restaino, did not participate in the hearing Tuesday at the state capitol and will not be involved in the court’s deliberations and final decision.

The removal order for Restaino, issued Nov. 13 by the commission, stems from a March 11, 2005, incident in which Restaino briefly jailed 46 defendants from Domestic Violence Court because no one would take responsibility for an apparent ringing cell phone in his courtroom.

Restaino and his brother, Niagara County Social Services Commissioner Anthony Restaino, watched the hearing from the rear of the ornate courtroom. In a touch of irony, just before the justices entered the courtroom and the hearing began, a court clerk reminded everyone to make sure all electronic devices, “including cell phones” were turned off.

Connors told the justices what happened in Restaino’s courtroom on the day of the incident “is not contested.”

“Why it happened holds the key to whether Robert Restaino should be returned to the bench as a Niagara Falls City Court judge,” Connors told the court. “It was a perfect psychological storm and one we should have seen coming.”

Almost immediately, Judith Kaye, the court’s chief justice, interrupted.

“What were these signs (of impending trouble) that were missed?” she asked.

“(Restaino’s) incredible caseload, his unbelievable caseload,” Connors answered.

Restaino’s lawyer had already argued in a 60-plus page brief filed with the court before the hearing that Restaino’s “eruption (on the bench) was the result of severe psychological stressors at work and at home.”

“We have a lot of workaholic judges,” Justice Robert Smith said. “Are they all at risk (of behavior like Restaino’s)?”

Connors told him studies of the legal profession show many are.

“(Restaino) went completely off the rails,” Smith said. “How can we say to the community, ‘We understand what (the judge) did, but he won’t do it again?’ ”

Justice Carmen Ciparick asked if Restaino’s stress justified the action he took in jailing people to find a ringing cell phone.

“It doesn’t,” Connors responded, “but (the stress) does explain (Restaino’s actions).”

The justices wondered what effect returning Restaino to the bench would have in other cases where judges behave inappropriately and then say there was a rational explanation for that behavior. In particular, the justices questioned Connors about a 2005 case where they upheld the removal of a State Supreme Court judge in Queens who had a drug court defendant removed from her courtroom, out a back door, to keep him from being arrested by police on an unrelated crime.

“In that case, there was no evidence of mitigating factors (such as severe stress) or crisis state of mind,” Connors said. “(Judge) Restaino was remorseful (over his actions). (Justice Laura) Blackburne was not.”

Several of the justices repeatedly pressed Connors over “where to draw the line” on what behavior can be forgiven and what can not.

“Is there some conduct,” Kaye asked, “that is so intolerable (that a judge must be removed from the bench)?”

“Yes,” Connors replied.

“But with this (extreme stress) explanation, then what (conduct) would be (too extreme)?” Kaye pressed.

“There have been judges that threatened people,” Connors replied.

Kaye cut him off. “(Restaino’s conduct) is worse.”

Justice Victoria Graffeo questioned Restaino’s motivation for reversing course and releasing the 46 individuals who were jailed several hours later.

“Didn’t he do this when a reporter called?” Graffeo asked.

Connors insisted that Restaino was already making plans to release the individuals before reporters began asking questions of court officials about what had happened.

Attorney Edward Lindner, arguing on behalf of the Judicial Conduct Commission, also faced tough questions from the justices.

Kaye asked him about the large number of “friend of the court briefs,” 26 in all, that had been filed in support of Restaino.

“We have an unusual reaction here,” Kaye said. “This outpouring of support, what weight do we give this?”

Lindner dismissed the filings as having little legal merit, referring to them as nothing more than “unsworn character references.”

“This is conduct so egregious that it cannot be allowed,” Lindner told the court.

When asked by Graffeo to “define what is so egregious,” Lindner said Restaino’s actions were worse than the judge in Queens.

“Granted that (Restaino’s) behavior was weird and hard to defend,” Smith said, “is there anything (inappropriate) in (Restaino’s) life that did not occur other than on March 11, (2005)?”

Lindner said the cell phone incident was the only mark on Restaino’s record.

“So you’re saying that (Restaino’s) conduct is so egregious that it doesn’t matter what the community wants?” asked Justice Susan Read.

Lindner said the case had potential repercussions far beyond Niagara Falls.

When Kaye asked Lindner where the court should draw the line on judicial behavior, he told her Restaino’s own admissions to the commission made that easy.

“This judge knew that what he was doing was wrong at the time he was doing it,” Lindner said.

Before he sat down, Kaye asked Lindner one final question.

“Did they ever find the cell phone?” the chief justice asked.

“No,” Lindner replied.

In a final rebuttal, Connors tried to give the court one last idea for how to draw a line on judicial behavior.

“When there is some explanation and some mitigation and there is remorse and contrition,” Connor told the court.

Read still didn’t seem sure that was enough.

“(Restaino’s) caseload isn’t going to get any less,” the justice said. “How do we know this won’t happen again?”

“This man has a tremendous appreciation (of what happened),” Connors replied, “He has done what he should have done before. He has sought counseling and he knows he can’t bury himself in work.”

A decision from the court is expected by late May or early June.