GateHouse: Weinstein lawyers try to remove judge for admonishing client

Matthew T. Mangino

GateHouse Media

January 10, 2020

This past week, each morning a feeble looking Harvey Weinstein hobbled into the State Supreme Court building in Manhattan, New York for the start of his much anticipated sexual assault trial.

Celebrity trial aficionados know the routine - aging defendant, in rumpled suit, arm-in-arm with counsel, looking lost and bewildered. Remember the inexplicably “blind” comedian convicted of sexual assault?

Weinstein stands accused in criminal court of the alleged sexual assault of two women. He has been accused of assaulting as many as 70 other women who, by law, cannot pursue criminal charges due to the passage of time.

Harvey Weinstein appears as though he can’t walk without the aid of a walker, which, by the way, has its metal legs inserted into yellow tennis balls.

Monica Hesse, a Washington Post style-columnist, asked “Can you for one second imagine him (Weinstein) showing up with neon tennis balls?” referring to the Golden Globe Awards ceremony, ironically held the night before his trial began.

The trial is merely at the jury selection stage and already the sparks are flying.

The nearly immobile Weinstein apparently still has good dexterity in his hands. On the second day of jury selection, Judge James Burke admonished Weinstein for using his phone in the courtroom - actually two phones. Judge Burke told Weinstein, “Is this really the way you want to end up in jail for the rest of your life, by texting and violating a court order?”

Weinstein had been noncompliant with court’s order not to use cellphones in the courtroom and with court personnel who asked him to put away his phones on at least three occasions.

Social media was abuzz, was this judge biased against Weinstein? Did the judge want to put this feeble 78-year-old man in prison for life for using a cellphone?

Attorneys for Weinstein showed up the next day in court with a request for Judge Burke to hand the case over to another judge. According to the USA Today, the request for recusal alleged that Burke’s scolding reflects “animus” toward the defendant, and has “created a situation in which the Court’s ‘impartiality might reasonably be questioned,’ in violation of New York State’s Rules of Judicial Conduct.”

In New York, the sole statutory authority for judicial recusal is Section 14 of the Judiciary Law. Section 14 provides that a judge who has a financial interest in a case or is a relative of one the parities must recuse herself from presiding over the case - scolding a defendant for violating court rules is not on the list.

The courts in New York have ruled, “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court.”

Judge Burke refused to step aside.

There is a long standing doctrine in the law known as the “duty to sit.” The duty to sit encourages judges to hear and decide cases unless there is a compelling reason for recusal.

The duty to sit also discourages litigants from forum shopping - defense attorneys using recusal to find a more favorable judge. The doctrine also makes it difficult for judges to simply recuse themselves from controversial cases. Jeffrey T. Fiut, writing in the University of Buffalo Law Review, explained ”(T)he judge has a responsibility to hear and decide cases, one that should not be shirked for political or personal reasons.”

“There’s nothing prejudicial or inflammatory (about) scolding a defendant,” said Judge Burke. “If using strong or even hyperbolic language succeeds after stern admonishments have failed, then the court has accomplished its goals.”

Weinstein’s feeling are hurt - someone told him “no.” There will be many more distractions as this case moves forward, but the ultimate goal will not change - justice for the accused and justice for the victims.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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