Legal Aid asks Suffolk DA for all messages from texting judge

The Suffolk Legal Aid Society asked the district attorney’s office on Friday to search prosecutors’ cell phones and produce any messages a Suffolk District Court judge sent to them, the day after news broke that the judge communicated privately with prosecutors from the bench earlier this week.

“We are concerned this may not be an isolated incident,” Suffolk Legal Aid Executive Director Laurette Mulry wrote in a letter sent Friday to Acting District Attorney Emily Constant and Administrative Judge C. Randall Hinrichs.

Judge Janine Barbera-Dalli sent text messages to prosecutors last week and Monday, shortly before a trial was to begin in Central Islip of a Legal Aid Society client charged with heroin possession and loitering. Prosecutors disclosed the texts to defense attorney Juliann Ryan of Legal Aid, who then asked Barbera-Dalli to recuse herself. The judge did so.

Communicating privately with only one side in a case — known in the courts as ex parte communication — is a violation of legal and judicial ethics, experts say. Barbera-Dalli’s actions shocked many in the legal community. The issue has since attracted national attention.

The texts were sent to a victim’s advocate from the human trafficking court that Barbera-Dalli oversees and to three prosecutors, Ryan said. In the texts, Barbera-Dalli called Ryan’s client a “trafficker,” asked why he wasn’t charged as a trafficker and suggested a legal strategy to get Legal Aid removed from the case.

A spokeswoman for Hinrichs said he had not had a chance to review Mulry’s letter Friday afternoon. Barbera-Dalli continued to preside Friday in the human trafficking court. Court administrators declined to make Barbera-Dalli available for comment.

In the letter, Mulry referred to another case before Barbera-Dalli from October.

“Attorneys from our office had noticed that the judge was using her cell phone to text message during the course of that trial,” Mulry wrote. “Although at the time we considered such conduct on the part of the judge as inappropriate, we did not consider it as anything other than improper but relatively benign behavior.”

But as a result of the events of the past week, Mulry wrote that the October case must be viewed in a more critical light.

She asked Constant to conduct an internal inquiry to find out if “there have been other improper ex parte communications directed to your office.” If any are found, Mulry asked that Constant disclose them to Legal Aid.

Mulry also requested that if any such texts have been deleted from prosecutors’ phones, the district attorney’s office retrieve the data from backups to cloud servers, or give permission for Legal Aid to search there.

The district attorney’s office confirmed that it had received the letter, but declined to comment on whether it would do what Mulry requested. On Thursday, Constant said, “the allegations involving Judge Barbera-Dalli are serious and should be reviewed by the state Commission on Judicial Conduct.” The commission has the power to discipline or remove judges from office. Its cases are confidential unless it takes action against a judge.

Hinrichs said Thursday he planned to meet with the judge, prosecutors and Legal Aid before deciding what action to take. He has the authority to reassign any judge or to refer a judge to the Judicial Conduct commission.