Making a Criminal Case Over Selection of Judges in Brooklyn

New York Law Journal

July 23, 2003, Wednesday
Making a Criminal Case Over Selection of Judges in Brooklyn

By Daniel Wise

This long, cold spring that finally turned to summer has been a season of ugly headlines for the Brooklyn judiciary.
"Probe If Dems Forced Judge to Use Cronies," "Dem Big Put Me In Squeeze: Ex-Judge," and "Subpoenas Fly as Judicial Probe Heats Up" are just a few examples of recent local headlines.
The intense public scrutiny followed a decision by Brooklyn District Attorney Charles J. Hynes to convene a special grand jury to examine the way Democratic judicial nominations are won in the borough. Mr. Hynes began the probe in the wake of the arrest of Brooklyn Supreme Court Justice Gerald P. Garson on felony charges of receiving awards for official misconduct.
The notion of criminality in the process gained added currency when Mr. Hynes subsequently was quoted publicly that he is confident a grand jury's probe will yield indictments. Mayor Michael R. Bloomberg also added fuel to the fire when he stated, in a pointed reference to news coverage of the Brooklyn probe, "Every day you pick up the paper, you read about more machine corruption."
However, election lawyers and judicial campaign consultants caution that it may not be so easy for Mr. Hynes to find criminal conduct in much of what has been reported to date.
At the heart of the most serious charges to surface are reports that two Civil Court candidates in 2002, one of them an incumbent judge, told investigators that Democratic officials forced them to obtain the services of favored vendors for their campaigns. The two candidates, former Civil Court Judge Karen B. Yellen and Housing Court Judge Marcia J. Sikowitz, were also told to come up with $100,000 for their campaigns or face the loss of the Democratic Party's backing, according to an article in the Daily News.
Judge Robin S. Garson, a third countywide Civil Court candidate, who did not ultimately face a primary opponent, also made substantial use of one of the vendors that Ms. Yellen and Judge Sikowitz complained they had been pressured to use, news stories have reported. [Judge Robin Garson is married to Judge Gerald Garson.]
Many aspects of what has been reported about Ms. Yellen and Judge Sikowitz's complaints are the standard fare of politics, the experts said. Political parties commonly field slates and ask candidates to commit to a budget. Indeed, they said, in a primary the candidates are expected to bear the cost of the campaign, because by law county political parties are barred from putting their money into primary races. The Brooklyn party, however, has formed a separate committee called Brooklyn Democrats, which is legally permitted to contribute to primary races, but has rarely done so, said party spokesman Robert Liff.
Similarly, experts said, political organizations often urge candidates to work with vendors they have confidence in, and to coordinate the campaigns of the slates they are fielding through a single vendor to realize economies of scale. While it is not uncommon to attempt to coordinate the use of vendors late in a campaign, they added, normally discussions of how much a candidate will need to raise are discussed in the early stages of a candidacy.
Hank Sheinkopf, a political consultant who is currently working on an insurgent's campaign for Civil Court in Brooklyn, put it this way: "A political organization wants to exercise control to get the best job for the lowest price. The sanction, if someone doesn't do a good job, is that they won't get more work."
Meanwhile, Mr. Hynes' probe of the Brooklyn political process has taken on new dimensions beyond the judiciary. Reports have suggested that the borough's Democratic leader, Assemblyman Clarence Norman, has used the party's American Express account for his personal expenses -- a claim he has heatedly denied. Other articles have reported that the investigation is scrutinizing a $245,000 contribution to Mr. Norman's political club by Mark Green's mayoral campaign.
One aspect of the investigation has fallen by the wayside: Mr. Hynes' office is no longer pursuing a criminal investigation of Justice Gerard H. Rosenberg for allegedly ordering a clerk to delete a draft opinion in a politically controversial case involving application of the city's 1993 term limits law to City Council races. According to a prosecution source, Mr. Hynes has referred the matter to the state Commission on Judicial Conduct.

Context Is Critical
Whether a crime lurks behind ordinary political activity depends very much on nuance and context, said Gerald Skurnik, a political consultant who specializes in judicial contests.
While it is totally ordinary for party officials to discuss budgets with candidates they are considering endorsing, those discussions rarely take place late in a campaign, he said.
Viewed in that context, a Daily News article reporting that Ms. Yellen and Judge Sikowitz were asked to commit to raising $100,000 after they had received the Brooklyn party's endorsement raised fair questions.
On the other hand, Mr. Skurnik asserted, it is common practice for party officials to steer candidates to vendors "they have confidence in" to achieve greater coordination, even late in a campaign. Postage, for instance, is a huge expense, he said, and it is reasonable for party officials to insist upon one mailing -- at a third of the cost -- when it has three candidates running for the same court.
Mr. Skurnik worked for one of two insurgent Civil Court candidates who defeated Ms. Yellen and Judge Sikowitz: Judge Delores J. Thomas, who was formerly on the Housing Court. The other victorious insurgent candidate in that race was incumbent Judge Margarita Lopez Torres, who had been spurned by the party leadership.
Regarding complaints about being steered to favored vendors, Ms. Yellen and Judge Sikowitz's campaign filings show that they each hired a direct mail firm, Branford Communications. Ms. Yellen reported paying $7,686 to Branford, and Judge Sikowitz, $12,836. In addition, the records show that Ms. Yellen paid $9,000 to William Boone, a former district leader from Mr. Norman's political club, for a get-out-the-vote operation on primary day.
Campaign filings also show that Judge Robin Garson paid $13,786 to Branford Communications, with most of the articles written about the matter pointing out that she had run unopposed.
Robert A. Muir, Judge Garson's election lawyer, said it was true that his client did not have an opponent on primary day. But, he added, she had faced an opponent and battled extensively in both federal and state court to get the opponent, James P. McCall, off the ballot. The matter was not resolved until about a week before the primary, Mr. Muir said.

Large Gray Area
Given that a contested countywide election can cost anywhere from $100,000 to $500,000, a prosecutor could have a difficult time proving that a reported campaign expenditure was actually a bribe to win party support or had been extorted from an unwilling candidate by party officials, said Douglas Kellner, a former counsel to the Democratic Party in Manhattan and now a commissioner of the city board of elections. Mr. Kellner added that a district Civil Court contest could cost between $50,000 and $100,000.

To prove a crime, Mr. Kellner said, a prosecutor would have to demonstrate a clear disparity between the value of a service and what a candidate paid for it.
"If a candidate pays $100,000 for a service that is worth $10,000, that strikes me as illegal," he said. "But in between those two figure there is a huge gray area that is very difficult to deal with. In the real world, it is not hard to come up with an election expense one could justify."

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