On April 29, 2004, the Kings County Supreme Court made legal history by dismissing eight counts of an indictment against then-Justice Gerald Garson. (1) In six of these counts, Justice Garson was accused of receiving reward for official misconduct under Section 200.25 of the New York Penal Law, in that he allegedly obtained or agreed to obtain a benefit in return for violating his duty as a public servant. (2) This is hardly an unusual charge to be leveled against an allegedly corrupt public official, but in Justice Garson's case, the "duty" he was accused of violating was based purely upon the New York State Code of Judicial Ethics. Specifically, it was alleged that Justice Garson acted criminally by conducting improper ex parte communications and by accepting fees for referring unrelated cases to a private attorney. (3)
This was only the second time in New York, and the fourth time anywhere in the United States, (4) that a judge was prosecuted for violating ethical strictures that were not explicitly forbidden by a penal statute. In all three previous cases, the appellate courts held that such attempts were improper, characterizing them as violations of the principles of separation of powers and judicial independence. (5) In the Garson case, however, the Kings County District Attorney was ready to try again, claiming that a 1977 amendment to the New York State Constitution explicitly incorporated the ethical rules into the duties of a judge. (6)
The Kings County Supreme Court rejected this argument, holding that the considerations of judicial independence, separation of powers, and constitutional vagueness that informed the previous cases were still valid. (7) This decision was affirmed by the Second Department of the Appellate Division, (8) but leave to appeal was granted by the New York Court of Appeals. (9) If the highest court in New York upholds the arguments of the District Attorney's office, it will mark a dramatic shift of power from judges to prosecutors, with local prosecutorial agencies having the ability to selectively pursue indictments against judges for violations of broadly-worded ethical rules. Moreover, by shifting judicial disciplinary authority toward the District Attorney's office, it would undermine separation of powers as well as the role of disciplinary boards in regulating the American judiciary.
Accordingly, this Article will examine the constitutional and practical issues surrounding prosecutions of judges for ethical violations. The first part of this Article will focus on the Garson prosecution as an example of unwarranted prosecution of judges for violation of ethical codes. The second part will examine cases elsewhere in the United States in which judges and other public officials have been prosecuted for violations of ethical codes. This part will also analyze the manner in which the courts have dealt with considerations of constitutional vagueness, judicial independence, separation of powers, and the potential for vindictive prosecutions. Finally, the third part will discuss the threats to judicial independence that exist even under the current American legal framework, as well as the growing tendency to blur the line between civil and criminal liability. The Article will conclude that these factors, in combination with the fact that the code of judicial ethics was never intended to be a basis for criminal liability, militate against the use of such codes to define offenses under New York law.
H. THE GARSON PROSECUTION
The investigation of Kings County Supreme Court Justice Gerald Garson was a product of an ongoing probe into corruption in the Brooklyn courts. On January 24, 2002, Justice Victor I. Barron was indicted on charges of demanding a $115,000 bribe to approve a settlement in favor of an infant. (10) The indictment, which was the result of a two-year investigation, opened a Pandora's box of charges against other Brooklyn judges. …