Nutty Judge of the Week

It's common to see signs on courtroom doors instructing those who enter to shut off their cell phones. Often those signs are accompanied by a warning: if your cell phone rings audibly, it will be confiscated. (The judicial authority to steal an offending cell phone is unclear, but who wants to fight that battle?)

Fortunately, it isn't common for a judge to arrest everyone in the courtroom when nobody will admit ownership of a ringing phone.

[Robert] Restaino, who became a full-time judge in 2002 after serving part-time since 1996, was hearing domestic violence cases when a phone rang. "Everyone is going to jail," the judge said. "Every single person is gong to jail in this courtroom unless I get that instrument now. If anybody believes I'm kidding, ask some of the folks that have been here for a while. You are all going."

When no one came forward, the judge ordered the group into custody and they were taken by police to the city jail, where they were searched and packed into crowded cells. Fourteen people who could not post bail were shackled and bused to the Niagara County Jail in Lockport, a 30-minute drive away.

A judge who thinks mass jailings are the best way to respond to his own irritation -- without probable cause or even an individualized suspicion that each of the 46 detainees had done something wrong -- deserves to lose his job. Thankfully, Restaino lost his.

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    he was having problems in (none / 0) (#1)
    by cpinva on Tue Nov 27, 2007 at 10:29:18 PM EST
    his personal life, so jailing 46 people seemed like a good idea? whew! boy, i don't even want to think what he might have done, had he found a bottle of scope in his mailbox that morning, he might have just had them all executed.

    while it's nice that they drop-kicked him, it took over 2 years to accomplish it, not exactly timely.

      A lot of judges get very angry when phones or beepers sound in the courtroom and many courts don't even allow people to bring them into the courtroom. They are held by security along with pocketknfes, etc and  picked up when leaving. I have also witnessed judges impose small  fines on lawyers whose phones rang but never heard of a judge jailing even a person whose phone rang let alone innocent bystanders. Relatively speaking, the damages from these false arrests are small but 46 cases could run into some change.

      It's possible the judge might be protected by judicial immunity from personal liability but the county (or its insurer)might have to pay some money. I'd suspect at least some of the 46 people must have been lawyers.

    better link (none / 0) (#3)
    by Deconstructionist on Wed Nov 28, 2007 at 07:50:15 AM EST

      OK, it seems as if the judge did not jail everyone in the courtroom, only defendants before him who were there for review of release status. That's a big difference because the judge would have the discretion to jail them for their offenses -- but it is obviously a gross abuse of discretion, violation of due process, etc.  to jail them for something totally unrelated. i would think his immunity argument would be much stronger than if he jailed lawyers or people who just came to court to observe.


    at least he is toast (none / 0) (#4)
    by eric on Wed Nov 28, 2007 at 10:24:32 AM EST
    They did what they could and removed him from the bench.

    Not that it would be worth it to pursue some kind of claim, but I don't think immunity would protect him from liability when the conduct was so egregious it got him removed from the bench.

    It's not that simple at all. (none / 0) (#5)
    by Deconstructionist on Wed Nov 28, 2007 at 10:56:23 AM EST
     the general rule is that judges have absolute immunity for "judicial acts" and are not acting outside the jurisdiction afforded the court.

      Issuing orders jailing  criminal defendants is a "judicial act" and if the judge only jailed criminal defendants appearing in his court for review of release, that would be within the court's jurisdiction. To defeat the immunity one would heve to persuade that premising an order to jail on something totally irrelevant to the pending criminal case rendered the otherwise "judicial act" "non-judicial. Case law is decidely ad hoc and confusing in this area so its difficult to predict how a particular court might apply the law to  these facts.

      Also, another factor often used in evaluating immunity claims is the availabilty of alternative forums for redress without holding the judge liable for damages personally. On the one hand, one could argue his removal from the bench under by the disciplinary processes is an "alternative forum" but, on the other, one could argue that forum is without power to grant redress to the people harmed because removing him from the bench does not change the fact they were falsely imprisoned and suffered damages.

    on the record (none / 0) (#6)
    by txpublicdefender on Wed Nov 28, 2007 at 12:48:00 PM EST
    One defendant, according to the report, told the judge, "This is not fair to the rest of us." To which the judge replied, "I know it isn't."

    It's always smart for a judge to say, on the record, that he knows his jailing of you is unfair.

    What's amazing (none / 0) (#7)
    by Deconstructionist on Wed Nov 28, 2007 at 01:39:42 PM EST
     is that he seems to have done this serially,  and went through so many without at some point coming to his senses and  considering that it wasn't the best move. If he had just reacted and ordered all jailed in one utterance (and the order was carried out) it would have still been madness but not 2 hours of it.