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Friday, March 12, 200
SECTION: Section A; Page 21; Column 1; Editorial Desk
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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