Legal Ethics

Censure recommended for judge who had little patience for smirking defendants

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The New York Commission on Judicial Conduct is recommending censure for a Utica city judge accused of making intemperate remarks and summarily sentencing two defendants to jail for contempt of court.

The judge, Gerald Popeo, accused both defendants of smirking, though that was among many provocations by one of the defendants. In a Feb. 12 decision, the commission said Popeo abused his judicial power by sentencing the two defendants to jail without appropriate warnings or safeguards. The New York Law Journal (sub. req.) covered the commission’s findings and recommendation (PDF).

In one case in February 2010, Popeo warned the defendant about “putting on a show” and threatening the victim in court. Popeo went on to impose five successive 30-day contempt sentences as the defendant made faces, threatened the victim, yelled at his lawyer, interrupted the judge and made disrespectful comments, the commission found.

Popeo did issue a warning before imposing the contempt sentences, according to the commission findings. “Interrupt me one more time,” Popeo said, “it’s 30 days’ contempt of court. Do it again, it’s 30 more. So if you would like to interrupt me again, go ahead.”

“May I continue?” the defendant responded. “You didn’t let me continue.” Popeo imposed the first 30-day contempt sentence.

Popeo told the defendant he was disrupting his courtroom, turning away from him, and making a face. “Made a face to you?” the defendant asked. Popeo imposed the second 30-day sentence.

“You can do what you want to do,” the defendant said. Popeo imposed the third 30-day sentence.

Later in the hearing, Popeo stated that the defendant was “standing at the podium smirking, turning away, looking at the audience.” The defendant replied, “Smirking?” Popeo imposed the fourth 30-day sentence.

“This is a mockery in this court,” the defendant said. Popeo gave the defendant a fifth 30-day sentence.

Popeo later dismissed two of the five counts of contempt.

In a second case, Popeo told the defendant, “You’re standing there with a grin that I would love to get off the bench and slap off your face.”

The defendant replied that he was just laughing. According to the commission, Popeo replied: “What are you laughing about? You’re in a courtroom, in an orange jumpsuit being issued an order of protection, and you’re laughing. That’s a funny thing, that’s hilarious. How about 30 days in jail for contempt, that’s hilarious, too, isn’t it? What’s wrong with you? We done smirking?”

After the hearing, as the defendant was leaving the courtroom, Popeo ordered him back, saying the defendant turned away and “gave me a nice, big smirk, nice big smirk, as if to say blank you, judge. That’s 30 days contempt of court. Have a nice day.”

After media inquiries, Popeo vacated the contempt order on his own motion.

The commission also found that Popeo referred to a prosecutor as a “cigar store Indian” for not speaking during plea discussions, and suggested that a prosecutor wanted a defendant to forfeit funds because he wanted to buy a new couch for his office or a laptop.

The commission said it could not substantiate an additional allegation that Popeo had used a racial epithet in a conversation with a lawyer after a courtroom session.

Popeo’s lawyer, Robert Julian, told the New York Law Journal that Popeo accepts the commission’s decision and understands the criticism of his conduct.

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