Prosecuting Judge Duckman

By David Feige

Judges are easy targets. It is always unwise and frequently unethical for them to defend their reasoning publicly. The judiciary is designed to be insulated from the whims of public opinion, and engaging in recriminations or justifications politicizes what should be a contemplative job. The public, meanwhile, is sending only one message: Ignore the law and Constitution, and rule as harshly as possible.

No one has been less insulated from these pressures in recent weeks than Judge Lorin Duckman of Brooklyn. Judge Duckman has been loudly assailed this month over his release of Benito Oliver, who weeks later killed his ex-girlfriend, Galina Komar, and himself. This week, the judge faced more criticism over a similar case, in which a convicted man was freed only to attack a former girlfriend again. Yesterday, Gov. George Pataki recommended that Judge Duckman be removed.

Both cases are obviously distressing. Yet, contrary to the public excoriation of the judge, they say far less about him than they do about the failures of the Brooklyn District Attorney's office and its power to deflect public scrutiny away from them.

To suggest, in particular, that Judge Duckman could have prevented Galina Komar's murder using the blunt legal instruments available to him is absurd. Anyone who is willing to die to accomplish their ends is very difficult to stop. Mr. Oliver's corpse is proof of his dedication to ending her life.

When he was arrested on Dec. 15, Benito Oliver was charged with assault in the second degree and attempted assault in the second degree, both felonies. The most serious of these charges carries a mandatory minimum sentence of five years. Having charged Mr. Oliver with a felony, the law required the District Attorney's office to present the case to a grand jury in order to secure an indictment. Yet that office, for whatever reason, chose not to go to the grand jury, and reduced the charges to misdemeanors. As a result, rather than facing a minimum of five years in prison, Mr. Oliver now faced a maximum of one year in jail.

The case, like thousands of similar ones involving domestic abuse, proceeded through the Criminal Court, where Judge Duckman sits. While prosecutors trumpeted the severity of the case in the press, Mr. Oliver's file was being passed off among half a dozen district attorneys. After having twice denied defense requests for a reduction in bail, Judge Duckman ordered the assistant district attorney to be prepared for trial on Jan. 24. Only after the District Attorney's office failed to arrive prepared for trial on two successive days was the bail reduced.

Judge Duckman did not "release" Mr. Oliver. Rather, he fixed what is considered reasonable misdemeanor bail in Brooklyn, which Mr. Oliver's family paid. In America, until a plea is entered or a jury renders its verdict, citizens are presumed innocent. Thus, in all but the most serious cases criminal defendants are entitled to a speedy trial and to reasonable bail.

While power is supposed to be distributed more or less evenly in the courtroom, in the realm of public opinion, district attorneys -- who invariably have their own press relations departments -- wield tremendous power. Busy defense lawyers, on the other hand, seldom have the resources to make themselves or their point of view accessible to a story-hungry press. And judges shouldn't, and usually won't, comment.

Judge Duckman did not invent domestic violence, and as much as we wish he could, he can't stop it. Comforting ourselves with the idea that these tragedies result only from errant judges or ineffective hangmen obscures the facts and impedes the search for real solutions.

David Feige is a public defender in the South Bronx and a Soros media fellow. He is currently at work on a book about the criminal justice system.

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