Dec 07 2017

Judge Texts with Prosecutor Over Strategy on Trial: Same Old Song with New Twist

Judge Janine Barbera Dalli

Suffolk County, NY judge Janine Barbera Dalli sent text messages to Suffolk County prosecutors this week, guiding them on how to charge and try a case against a defendant, in clear violation of judicial ethics that bar judges from communicating privately with one side in a case. To their credit, prosecutors immediately disclosed the texts to defense attorney Juliann Ryan of the Suffolk County Legal Aid Society, shortly before a trial was to begin in Central Islip of a client charged with heroin possession and loitering. The judge texted the prosecutors that the defendant should also be charged with trafficking, not mere possession and then a few days later texted them that perhaps they can knock Legal Aid off the case right before trial because of a conflict in that Legal Aid may have represented one of the witnesses who the judge believed was the defendant’s human trafficking victim. Here is the contents of that last post:

Dec. 4, 8:44 a.m.: By the way, thinking if Legal Aid is representing [her] don’t they have a conflict representing [defendant]? FYI, picking a jury on that case this afternoon.

Forcing the defendant to get new counsel on the eve of jury selection would significantly impact his defense and certainly delay his trial. This one-sided communication on trial strategy is an egregious act by the judge but frankly, its not surprising to me. Awhile back, I wrote a blog post about a Texas judge caught texting strategy to a prosecutor in the middle of the trial. That prosecutor also alerted defense counsel and the judge was forced to resign. (Judge Dalli should face the same result – she needs to resign or to be removed from the bench).

What I said then applies to this case as well:

This is but a glaring, extreme example of something that is common in courthouses, particularly in suburban, smaller counties. There is a coziness between the bench and the DA’s office. I myself have caught judges having ex parte conversations with the DAs assigned to their parts about my case as I was walking into chambers. Many is the judge who has offered some trial advice to a struggling DA who I am opposing. Sometimes it is helping the DA with framing a question or by asking a number of questions that the DA should have asked on direct examination but failed to do. Other times (and this is one of my favorites) the judge will say “Objection Sustained” to a question I pose to a witness on cross even though the DA did not make any objection. I have made a record on that practice at least three or four times to my recollection. I always tell the judge not to do me the same favor, as I have a right to let a question go even though objectionable if I believe the answer will be favorable or of use to my client. I then remind the court that he or she is not a participant in the trial and should let the adversaries duke it out on their own. Counsel should also object if the court is taking a witness through a direct examination from the bench.

There are a number of reasons for this comfortable relationship: in those counties, former prosecutors make up a significant percentage of the bench. Another large chunk are former county attorneys or other government appointees. Rare is the seasoned criminal defense practitioner who becomes a judge.

There is also this perception that since both work for and are paid by the State, that they are somehow different arms of the same creature. They are “in it together.” DAs get assigned to judicial parts so they see the judge all day every day (or as much of the part of the day as the judge works). They know the judge’s habits, favorite foods, pet peeves, etc. But the judge also knows the DAs habits and when no case is pending, during a conference day for example, I have heard judges offer advice to the DA about a line of questioning or an issue that came up. I have rarely heard the same type of conversation between a judge and defense counsel. It is also not rare for a young ADA to visit a judge after a trial and ask for a critique of their performance or for advice on how to improve. Supervisors also call judges afterwards for the same thing. Finally, the plain fact is that the vast majority of folks brought to the criminal justice system are guilty in some form or another for what they are charged. So some judges get jaded and cynical and soon believe that everyone before them is guilty despite the presumption.”

One has to wonder if this happened before with Judge Dalli. I find it hard to believe that this would be the first time she attempted something as blatant as this. Dalli runs on the Conservative Party line, which has tremendous power and influence in Suffolk County politics and in the Suffolk County Courthouses in particular. She was the Chairwman of the Smithtown Conservative Party prior to taking the bench. Even though she got trounced in the recent election for Supreme Court, she was promoted to Acting County Court Judge and her salary bumped up to $179,000 – a $23,000 increase. This came after her husband, Bartolo Dalli, a CPA, was let go last October after six years as a $111,000-a-year deputy county comptroller for Suffolk. So by virtue of their Conservative Party connections, the Dallis were earning a cool $277,000 per year for six years ($1.62MM) from Suffolk County government.

That clout may keep her on the bench even after this stunt. Suffolk County is a cesspool of intertwined politics, backroom deals and cronyism. I hope the Legal Aid Society will not only file a complaint with the Commission on Judicial Conduct but demand a full investigation as to how many other ex parte, private,strategy sessions she has had with DAs. It must be made clear that this behavior will not be condoned. She has to go.

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3 comments

    • P on December 7, 2017 at 10:25 pm
    • Reply

    Truer words have never been spoken

    • Worry McWorrywart on December 8, 2017 at 6:59 pm
    • Reply

    How many Suffolk Counties are there in the US ? Why assume people will know its out on Long Island and the same county where the D.A. was recently indicted.

    http://www.nydailynews.com/news/politics/suffolk-county-da-thomas-spota-top-assistant-indicted-feds-article-1.3588145

    It’s not uncommon IMO to find hacks all over the state and local systems. It’s primarily politics not legal skill or temperament that gets you on the bench. Every election cycle I’m told to “vote” for six local judges and there are 6 names on the ballot.

    https://nypost.com/2017/06/07/how-the-politically-connected-control-the-new-york-court-system/

    I’m concerned about the Federal system because the current GOP couldn’t care less about quality only political leanings.

    1. I have added “NY” to the first mention of Suffolk County. Thanks, good point. The Federal system is being decimated by appointment of unqualified judges. Since the ABA began weighing in on the qualifications of judicial appointees, they have reviewed over 450 potential appointees. Only 6 have ever been found “unqualified” – 4 of them have been nominated by Trump. The quality of the Federal bench was a hallmark of the US legal system. Now some are being appointed without ever having tried a case or even having appeared in Federal court

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