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September 18, 2018

Assistant DA: Judge’s Charges Are ‘Ridiculous’


OSWEGO COUNTY, NY – An Assistant District Attorney in in Oswego County has decided to make some of the complaints that a judge has filed against her public; complaints which she calls ridiculous.

This month alone, Oswego County Court Judge Walter Hafner Jr., has had to recuse himself from several cases on his docket, stemming from complaints that he filed with the Attorney Grievance Committee against assistant district attorney Mary Rain.

Though the complaints are confidential, Hafner made a complaint public in November 2007 when Rain appeared in his courtroom during an appearance for Ronald McCarthy. This week, Rain disclosed the substance of some of Hafner’s allegations.

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Hafner declined comment on the complaints, citing confidentiality.

“If she wants to talk about it, she can,” Hafner said.

Rain explained that more than 20 allegations of ethical violations Hafner filed against her in two separate complaints have been unfounded. Because some allegations are still pending, Rain did not disclose the entire document.

“Until those matters are fully investigated and decided on, I cannot discuss them,” Rain said.

The bulk of Hafner’s allegations revolved around the court case that Rain prosecuted against Robert Farrell, the former Oswego recreation director who was acquitted of allegations that he used a city computer to disseminate indecent materials to minors.

Within the complaint, the judge accused Rain of disclosing information to a Post Standard reporter during coverage of Farrell‘s trial.

“I sincerely hope you review the transcripts of the proceedings and compare them to the fabrications published in the Post Standard,” Hafner wrote.

“Because he objected to the article she wrote, he grieved me,” Rain said. “He tried to make it look like I wrote the article for her, which I certainly didn’t. To say that I provided information and that she reprinted my fabrications is ridiculous.”

Rain pointed out that the reporter was present in court for the majority of the trial.

Within the complaint, Hafner also wrote that Rain falsely informed the reporter that the court “allowed Farrell to testify to events that he did not know actually happened.” Hafner also wrote “the defendant merely testified as to his belief that someone had planted the evidence on the computer. He never testified as to who actually did it.”

“That is a contradiction in itself,” Rain said. “If Mr. Farrell believed someone planted evidence but didn‘t say who, that is really saying that he testified to information he did not know actually happened.”

Allegations that Hafner filed in a separate complaint alleged that Rain was employing one of her former clients “under the table” to do work at her home. He also called attention to the motive behind the assignment of a special prosecutor that was assigned to that client on new charges after Rain had moved to the DA’s office.

“He could have cleared up any suspicion of one of those allegations simply by calling a colleague,” Rain said. “He didn’t do that.”

“He obviously has a bias toward me,” Rain said. “His complaint was filled with derogatory statements that he certainly didn‘t have to say to file a complaint.”

Because of the pending complaints, Rain said that Hafner is required to recuse himself from cases she is prosecuting.

Hafner confirmed that he is recusing himself from several cases because of the situation. He did not confirm whether he has filed a grievance against at least one other member of the DA’s office.

Earlier this month, Hafner recused himself from the case against Jay Barboni, the man accused of causing the death of his girlfriend’s son in the city of Fulton. The case is being prosecuted by chief ADA Donald Todd and ADA Gregory Oakes.

Todd explained that he has “requested that Judge Hafner recuse himself from any cases” that he is prosecuting. Todd would not say why he made the request.

Hafner said, however, that Todd “won’t remit.”

A remittal procedure allows prosecution and defense attorneys the ability to waive a judge’s disqualification and hear a case that the judge has recused himself from. (See information on judicial conduct rules below.)

“I am here every day to do cases,” Hafner said. “If they want to remit, I can do the case but they refuse to do so.”

Hafner noted that need for recusal has arisen in many of the county’s higher profile cases. Citing examples, Hafner said he recused or has been asked to recuse in cases against Ronald McCarthy, Barboni, Jessica Burger, Cathy Scott and Alan Jones.

“Any case that has any type of publicity to it, (Rain or Todd) are on it and they want me to (recuse)… any type of public interest, they want me off the case,” he said.

In the case against Jones, who was indicted for allegedly causing the death of his step-sister, 11-year-old Erin Maxwell, Hafner has yet to step down. During Jones’ appearance in court earlier this month, Hafner ordered the transcripts of the grand jury proceedings after he was informed by District Attorney Donald Dodd that Rain took part in those proceedings.

Because Jones’ case is pending, Dodd declined comment on the matter.

“At this point in time, I don’t know what part (Rain) had on the case, other than what (Dodd) said at the end of the arraignment,” Hafner said. “If she was part of it, I’ll have to get off it again. It is a pending case so I can’t talk about it.

“It just seems unique to me that she is a part of every case,” Hafner added.

During the appearance Oct. 8, Jones’ defense attorney, Salvatore Lanza, suggested that his client’s case be transferred to Onondaga County because of the conflicts.

“I felt what was going on between the judge and the DA’s office could have an impact on my client and other clients,” Lanza said.

“Every time we go into court and the DA’s office sends Mary Rain or (Donald) Todd, we have to get into this,” Lanza added. “I said that if this is going to be a problem, the case should go to Onondaga County.”

Lanza said Hafner told him he could apply to have the case transferred. Lanza said he has no plans to file the application.

“This case is too big,” Lanza said. “They aren’t going to let it go. I trust the judge and I believe in the jury system. All I can do is to ask the jurors to keep an open mind.”

Hafner believes that Rain’s disclosure about the complaint is an attempt to disparage him before the election. Hafner is running for reelection against ADA Robert Genant. Election Day is Tuesday.

“I am thinking this is very political, since my opponent works in their office,” Hafner said.

Hafner has secured the Democratic, Republican, Conservative and Working Families lines in next week’s election. He won the Republican Primary in September, though the party endorsed Genant, who is now running only on the Independent line.

“I am here every day to do cases,” he said. “I am ready, willing and able to do cases.”

Defining Judicial Conduct

Under the New York State Bar Association’s Code of Judicial Conduct, a remittal procedure is considered after a judge is required to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

A remittal procedure provides the prosecution and defense an opportunity to proceed by waiving the judge’s disqualification. That consideration is made independently of the judge and requires consent from both parties.

In cases that are prosecuted by Rain, the rules of judicial conduct require Hafner to disqualify himself based on the appearance of “personal bias or prejudice concerning a party” because of the grievance. (Canon 3: subdivision E, subparagraph (1)(a)(i))

Under the judicial conduct rules, a judge “must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal” after consulting with one another.

Dodd said he believes that leaves no room for interpretation.

“I think the opinions (under the code of judicial conduct) are crystal clear,” Dodd added. “When that attorney appears in his court, the judge must disqualify himself. The rules say ‘shall disqualify,’ not ‘tell me how much that person was involved in a case.’”

A representative from the New York State Committee on Judicial Conduct declined comment on the matter.

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