Suffolk judge texted prosecutors from bench, could face sanctions

A Suffolk County judge sent text messages to prosecutors this week, guiding them on how to charge and try a case against a defendant, in apparent violation of judicial ethics that bar judges from communicating privately with one side in a case.

Prosecutors disclosed the texts to defense attorney Juliann Ryan of the Legal Aid Society, shortly before a trial was to begin in Central Islip of a client charged with heroin possession and loitering.

Ryan then asked District Court Judge Janine Barbera-Dalli to recuse herself from the case, according to a transcript of the Monday proceeding.

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.

Ryan told the judge her texts showed “extreme bias on your honor’s part.” Barbera-Dalli recused herself Monday from the case without explaining her actions.

The judge drew widespread condemnation from lawyers and legal experts for her behavior.

“I can’t believe that this would even occur,” said Christopher Brocato, president of the Suffolk County Criminal Bar Association. “To send text messages during the actual hearing is mind-boggling . . . This is Judging 101. You don’t do that.”

Acting District Attorney Emily 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.

Court officials declined to make Barbera-Dalli available for comment Thursday.

Suffolk Administrative Judge C. Randall Hinrichs said he would review the case.

“I recognize the very serious nature of the allegation concerning the judge,” he said. “I will be speaking to all of the parties with information concerning what transpired and will take appropriate action after review.”

Hinrichs declined to say what action he would take, but he has the authority to reassign any judge or to refer a judge to the Commission on Judicial Conduct.

Laurette Mulry, executive director of the Suffolk Legal Aid Society, said the issue is a serious one.

“We need to make sure this is not an isolated incident,” she said, adding that she hoped the district attorney’s office would disclose if this had happened before. “I want to make sure that past and current cases have not been affected.”

Brocato said the incident called Barbera-Dalli’s impartiality into question.

“How can any defendant believe she’s not leaning toward the prosecution?” he asked. “It’s outrageous. You just don’t do this.”

Legal experts were similarly astounded.

“Doesn’t she know this is totally inappropriate?” said Ellen Yaroshefsky, executive director of Hofstra University Law School’s Monroe H. Freedman Institute for the Study of Legal Ethics. “You [as a judge] can’t operate as a prosecutor . . . It’s really disturbing. It undermines public respect for the judicial process.”

Richard Klein, a professor at Touro Law Center in Central Islip, said he’d heard about the case and was already using it in a lesson on judicial ethics.

“That’s absolutely inappropriate,” he said. “It’s not even borderline.”

Barbera-Dalli, 51, a former Smithtown Conservative Party chairwoman and attorney in private practice for 25 years, in January became a full-time acting County Court judge. Her annual pay rose to $179,500, a $23,300 increase.

She was elected in 2012 to a 6-year term, but lost a minor-party bid in November to become a state Supreme Court justice.

By David M. Schwartz

dschwar1@newsday.com,andrew.smith@newsday.comschwartznewsNY,

David Schwartz covers environmental issues. A native Long Islander, he's worked at Newsday since 2013.