New York Family Court Judge Bryan Hedges, 65, thought that he had resigned from the bench in Onondaga County in April after allegations that he sexually abuse with 5-year-old deaf niece. However, the state Commission on Judicial Conduct decided to retroactively remove him from the bench and bar him from ever holding a judicial office again in the state of New York despite that fact that the incident occurred 40 years ago and before he become an attorney. It presents an interesting case on the reach of judicial ethics for judges.

The case arose after the girl’s mother (the sister of Hedge’s wife) went to Onondaga County District Attorney William Fitzpatrick to report the alleged 1972 encounter. It is unclear why she took this long to make such a report. However, the police then arranged for her to tape conversations with Hedges, including one where he reportedly conceded that his behavior was “abhorrent,” “totally wrong,” “indefensible” and “very, very, very bad.”

Ellen Cantwell Warner is now 45 and has been deaf and unable to communicate except through sign language and writing since suffering a viral infection in utero. She recently spoke of her abuse and says that the discipline had helped her in her healing process.

The alleged misconduct was described by the Commission:
In 1972, when she was approximately five years old, E. and her family visited her grandmother’s home in Albany. On that occasion, as she was wandering around the house that morning, E. walked upstairs and through the open door to a third-floor bedroom, where respondent was lying on the bed. Respondent was masturbating on the bed.

E. entered the room, got onto the bed and knelt next to respondent. As respondent has acknowledged, E. touched his hand which was on his exposed penis. As he has further acknowledged, respondent continued to masturbate for two to four seconds, with E.’s hand on top of his hand, before he stopped.

Hedges reportedly admitted that the touching occurred but challenged the claim that it violated judicial ethics and challenged the jurisdiction of the Commission. The act occurred before he became an attorney in 1973. Moreover, there were slight differences in the accounts:

The record before us contains two renditions of what occurred. E. recalls that respondent encouraged her to enter the room and placed her hand on his penis. Respondent denies that he encouraged her to enter the room or guided her hand, and he states that she touched his hand. The events in question occurred 40 years ago, when E. was five years old. Obviously, she recalled a traumatic event. Although the referee found E.’ s testimony to be credible, it is sufficient for our purposes to conclude that even if the facts are as respondent has testified, his actions are indefensible (as he acknowledges) and are a sufficient basis upon which to render this determination.

It is interesting that the police would investigate the matter since the statute of limitations for criminal prosecution expired on such a crime 22 years ago. They could not prosecute even if they wanted to. The decision to put a wire on someone to investigate an unprosecutable crime could raise concerns over the potential threat of abuse in some cases (even if understandable in this case). While at the time this was a sitting judge, there remains the question of the jurisdiction to investigate matters that cannot as a matter of law result in a criminal charge. Ultimately, Fitzpatrick turned the matter over to the commission and Hedges filed for retirement after being informed by the commission that it was investigating.

Commission administrator Robert Tembeckjian described the case as uncommon and “”makes public a horrible 40-year secret that, had it been known, would likely have prevented Mr. Hedges from being a judge in the first place.”

The commission found 7-2 that the lifetime ban was warranted given Hedges “admitted sexual act with a defenseless child.” Such “abhorrent” acts, it found are “not attenuated by the passage of time.”

Hedges however says the allegations are “untrue” and says that he will contest the recommendation. The Commission found that Hedges violated §§100.1 and 100.2(A) of the Rules Governing Judicial Conduct. Section 100.1 requires judges to “uphold the integrity and independence of the judiciary.” Section 101.2(A) stipulates that “a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” These rules were obviously written with the expectation that they address acts while a judge but the Commission found that they are not limited to such tenure. However, the interesting question is the application not only 13 years before a person was a judge but before a person was an attorney. Was he under an obligation then as a layperson to meet the standards for a judge? The opinion does not delve into such obvious questions. One possible counterargument would be that he became a lawyer and a judge on false pretenses by not revealing the incident.

There is a strong dissent by Commission Member Joel Cohen who does not question the jurisdiction of the Commission. However, he noted that Hedges had agreed not to seek another judicial office and the ” the alacrity with which he resigned his judgeship” after being informed o the investigation. He noted that, at Cohen’s urging, Hedges even waived confidentiality to make the incident public — guaranteeing that this “grossly unsympathetic figure” would never hold any office of any kind. Yet, Cohen accused the Commission to seeking to punish him rather than protect the bench, which is its sole function in such a case.

The record before us contains two renditions of what occurred. E. recalls that respondent encouraged her to enter the room and placed her hand on his penis. Respondent denies that he encouraged her to enter the room or guided her hand, and he states that she touched his hand. The events in question occurred 40 years ago, when E. was five years old. Obviously, she recalled a traumatic event. Although the referee found E.’ s testimony to be credible, it is sufficient for our purposes to conclude that even if the facts are as respondent has testified, his actions are indefensible (as he acknowledges) and are a sufficient basis upon which to render this determination.

What do you think about the decision and the jurisdiction of both the prosecutor and the Commission in such a case?

Here is the opinion: Hedges.Bryan.R.2012.08.17.DET

Source: NY Law JournalJudge