More Assistant DAs Disclose Judge’s Complaints

OSWEGO COUNTY, NY – Three attorneys with the county District Attorney’s office have confirmed the source of conflicts with Oswego County Court Judge Walter Hafner Jr.

For approximately a year, Hafner has been recusing himself from several cases, reportedly stemming from pending concerns that he brought to the attention of the Attorney Grievance Committee.

Hafner is prohibited from discussing the complaints because of confidentiality rules that protect the attorneys. The prosecutors who are facing allegations of ethical violations are beginning to talk.

“There is not much to say as far as I am concerned,” Hafner said. “I will just let them do all the talking.”

Assistant DA Mary Rain recently disclosed that more than 20 allegations of ethical violations Hafner filed against her in two separate complaints have been unfounded. Rain did not disclose the entire document, however, because several matters are still pending.

Days later, assistant DA Robert Genant, who was defeated by Hafner in the race for the Oswego County Court Judgeship in last week’s election, and chief ADA Donald Todd also disclosed the substance of grievances that have been filed against them.

Genant said Hafner filed two complaints against him with the Attorney Grievance Committee earlier this year. He said the substance of those complaints was entirely political.

“The first complaint was filed June 10, 2008 when he alleged that my campaign flier misrepresented that I was an incumbent judge,” Genant said.

Genant said that the Attorney Grievance Committee decided that the matter did “not justify an investigation on their part” and the matter was closed.

In August, Genant said Hafner filed another grievance, alleging an ad placed in a local newspaper by the county Republican Committee violated election law that Hafner said forbade committees from spending money on candidates before a Primary election.

The two sides debated the validity of the law in news articles that were published in The Post Standard Aug. 5 and Aug. 6.

“In the first place, I didn’t place the ad but he filed the grievance against me,” Genant said. “He cited election law as the basis for his complaint but didn’t check his sources. The law was declared unconstitutional by state and federal courts two years before.”

Genant pointed out that Hafner also made disparaging comments about him and other members of the DA’s office in a letter to the editor that was published in The Valley News in May. In the letter, Hafner questioned Genant’s ethics, related to his bid for the Republican Committee’s endorsement.

“Part of the complaint he filed was contained in his letter to the editor,” Genant said.

Because the Attorney Grievance Committee did not follow through with Hafner’s grievances, Genant said that Hafner is not required to recuse himself from cases that he is prosecuting.

“He doesn’t have to recuse because the complaints are not pending,” Genant said. “But the rules say a judge should recuse when his impartiality might be questioned. Without making any comment on that myself, does it seem his impartiality could be questioned?”

Has it become an issue in court? Genant said he doesn’t know yet.

“I haven’t been in his court in several months,” he said. “I had one Huntley hearing before him but it has been a while since I’ve been in court.”

For other attorneys in the DA’s office, the complaints have resulted in delays. Because a complaint is pending, Todd said he has requested that Hafner recuse himself from all cases that he is prosecuting.

Todd said he can’t confirm that Hafner has filed grievances himself because all grievances are officially made by the Attorney Grievance Committee.

“(Hafner) has corresponded a number of times about me with the Attorney Grievance Committee,” Todd said. “The committee takes the position that while someone corresponds with them, they are independent and they launch their own investigation.”

Todd said that the substance of his grievance is also political and suggests that he is violating an opinion that was set down by the New York State Bar Association. Todd noted that the association is very “pro-defense attorney” but “not so much pro-police and prosecutor.”

“The issue is whether or not a person who is an ADA forfeits their constitutional rights to participate in the electoral process,” Todd said.

“(The Association has) rendered an opinion that DA’s can’t circulate petitions on behalf of candidates that they deem qualified,” Todd said. “So they are saying that because I am a DA, I forfeit my First Amendment rights. There are some of us who disagree with that opinion.”

Because of the complaint, Todd said he does not feel he would have equal footing in Hafner’s courtroom.

“Because he has written multiple letters (to the grievance committee)… it would be difficult for a person to feel he would be on equal footing with another attorney and treated fairly by the court as the person on the other side (of the grievance),” Todd said.

Todd confirms that he is a member of the Oswego City Republican Committee.

“I believe I have a constitutional right to freedom of expression,” Todd said. “The Bar Association opinions are just opinions. … I’ve got rights under the U.S. Constitution that permit me to do what I am doing.

“There was a political sign in front of my house that blew off in the wind but the stake is still there,” Todd said. “That is kind of what the Bar Association opinion is saying. I can have a sign but it can’t say who I want to serve.”

While Todd and Genant say the only issues that have surfaced against them are political, Rain faced charges of ethical violations with regard to her performance in Hafner’s courtroom. When Rain made some of Hafner’s complaints against her public, Hafner suggested that her decision was a political maneuver.

“First of all, I didn’t seek (Oswego County Today) out,” Rain said. “Secondly, the majority of his complaints were taken care of over the summer. I could have discussed this then but I didn’t contact anyone.

“The only reason I opted to discuss the complaints now is because of the constant humiliation I am facing by (Hafner), who brings it up every time we go into court,” she added.

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

“Instead of just recusing, he has to drag things out,” Rain said.

Rain pointed out that Hafner notified DA Donald Dodd of his first grievance before she was notified by the Attorney Grievance Committee. In the letter, she said Hafner told Dodd about the grievance but said he can be impartial in cases that Rain was assigned to.

“I found out about his grievance two weeks after my boss did,” Rain said.

An opinion that was issued by the New York Advisory Committee on Judicial Ethics states that judges do not have to disclose the reasons why they are recusing to protect “judges and others from suffering unnecessary embarrassment or humiliation as the result of a particular disclosure.”

“The opinion says that the judge is not to embarrass the attorney (he) is grieving,” Rain said. “The whole point of the opinion is that he is not supposed to embarrass or humiliate. Well, it was embarrassing and is humiliating every time that he brings it up by objecting to recuse.

“Even though he doesn’t disclose the reasons why, he is telling people that he is questioning my ethics,” Rain said. “Because he is a judge, that lends credibility to it for a lot of people.”

Citing an example, Rain pointed out comments that attorney Salvatore Lanza made during an appearance for Alan Jones.

“Sal Lanza made a long deal about it in open court,” Rain said. “It is something he never would have been able to know about if (Hafner) didn’t say it in the first place.”

There is a process in place with the New York State Committee on Judicial Conduct to grieve members of the bench. Rain declined to say whether she has taken that action.

“I won’t discuss that, now or at any time in the future for the same reasons that (Hafner) shouldn‘t have,” Rain said.

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