Judge Disqualified

New Jersey Criminal Lawyers Schwartz Posnock

Philadelphia Inquirer August 16, 1986


Author: Fredric N. Tulsky,

Common Pleas Court Judge Mitchell S. Lipschutz ruled yesterday that he had improperly convicted a 13-year-old of arson but later in the same hearing abruptly disqualified himself from the case and declared his decision ”void,” saying another judge would have to reconsider the post-verdict motions.

Lipschutz’s sudden disqualification came at the direction of Family Court Administrative Judge Nicholas A. Cipriani, who later said he “ordered” Lipschutz to stop hearing the case “in the interest of the system, so no one would feel something improper had been done.”

The unusual action by Lipschutz came in his first appearance on the bench since Cipriani removed him last month from deciding cases. The removal came after both a prosecutor and defense attorney accused Lipschutz of making racial slurs and obscenities in his chambers after convicting a 17-year-old black youth of robbery.

Cipriani said yesterday that he had earlier decided that Lipschutz should dispose of several pending post-trial motions remaining from cases that he had previously decided, but that Lipschutz should disqualify himself if anyone objected.

Nonetheless, in the midst of the hearing yesterday, Cipriani called Lipschutz on the bench and directed him not to continue.

Both Cipriani and Deputy District Attorney Albert Toczydlowski said last night that Cipriani called Lipschutz after Toczydlowski had called the administrative judge to confirm that he had authorized Lipschutz to preside over post-trial hearings.

Cipriani and Toczydlowski stressed, however, that the prosecutor had not formally objected to Lipschutz’s presiding over the post-trial motion; Lipschutz said in court after talking to Cipriani that “somebody” had objected to his continuing with the motion.

Lipschutz could not be reached for comment last night.

Chief Public Defender Benjamin Lerner contended last night that the district attorney’s office had only raised questions with Cipriani after Lipschutz had agreed to reverse the arson conviction.

“It appears to me unfortunate that the district attorney’s office and a judge of Family Court operate under a double standard: There is no objection to virtually any action by any judge, so long as the judge rules in the commonwealth’s favor,” Lerner said. “But if a judge rules in favor of a defendant, his actions become inappropriate.”

Lerner and Leslie Posnock, the assistant public defender who handled the case, expressed concern that Lipschutz had been ordered off the bench after he had ruled in their favor and that no one had objected in their presence to his handling of the case. Court rules forbid one side from making such an objection without the knowledge of the other side.

Toczydlowski insisted that he had not objected to Lipschutz’s continuing with the hearing but merely had questioned Cipriani over whether the administrative judge had authorized Lipschutz to proceed. He said that Cipriani later called him back to say he had decided that Lipschutz should not proceed.

As a result of Lipschutz’s disqualification, the youth remains in custody, where he has been since Lipschutz convicted him July 11 of arson and two misdemeanor charges: conspiracy and the unauthorized use of an automobile. Lipschutz withdrew from the case after hearing extensive arguments on whether the youth should be confined. He never ruled on that issue.

The arson charge, which involved a mailbox fire, was the most serious against the youth. Posnock contended at the start of the hearing yesterday that Lipschutz had improperly considered a statement given by the youth confessing to the incident without the required independent evidence that a crime had been committed.

“What happened in my eyes,” Posnock said last night, “was that I was arguing post-conviction motions and was on very good legal ground and that there did not appear to be any questions” about Lipschutz’s disposing of the case. Both Toczydlowski and his deputy, Hugh Colihan, were in the courtroom while Lipschutz granted the motion reversing the arson conviction, Posnock said.

“The next thing I knew was that suddenly Toczydlowski was not in the room anymore,” she said.

As the hearing continued on the disposition of the misdemeanor charges, Posnock presented two Juvenile Justice Center officials, in whose care the youth has been since his conviction, to testify that the youth was an ”exceptional child” and should not be held in confinement. ”

Judge Lipschutz then received a phone call and left the bench. When he returned, he said that ‘somebody’ had objected to his presiding over the hearing and that everything he did was void.”

Posnock said she was “flabbergasted” by the announcement because neither she nor the assistant district attorney handling the case, Richard Green, had objected in court to Lipschutz’s deciding the matter.

Toczydlowski, however, said that no one from his office had actually opposed Lipschutz’s deciding the issue.

He said that he had called Cipriani yesterday morning to question whether Cipriani had authorized Lipschutz’s handling of the motions, to ensure that they had “legal authority.” He said that Cipriani did not return the telephone call until the hearing had already begun and that he told Cipriani that he did not object to Lipschutz’s presence.

Cipriani said that when he talked to Toczydlowski, “I asked him whether he had any objection” to Lipschutz’s handling the motion. “The D.A. would not give a firm commitment ‘yes’ or ‘no.”‘ Even so, Cipriani said, he decided to take “the precautionary approach.”

Lipschutz was removed July 24 by Cipriani pending the outcome of an investigation into allegations by Green – the same prosecutor in court yesterday – and defense attorney Leonard Tischler that Lipschutz had cursed and made racial slurs in chambers after convicting a 17-year-old of robbery.

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