Monday, November 26, 2007





November 26, 2007 -- If state Supreme Court Justice Helen Freedman won't even issue a ruling on years-old legal moves to end decades- old court oversight of city homeless shelters, maybe she should do something really radical - like quit.

Alas, she's been the city's self-appointed shelter czar for 25 years now - and her recent decision to convene yet another panel to re-hash the issues all over again suggests that she has no intention of parking the gravy train.


Let's be blunt: This case has become a farce - even by Gotham standards.

Judges are supposed to judge - not operate shelter systems.

Nearly every observer this side of Bellevue understands the long-overdue need to close this case and hand control of city shelters back to . . . the city.

Five years ago (when Freedman's self-ordered oversight of city shelters was only two decades old), she set up the first panel of experts to review the case.

Their unanimous opinion: End it right away - and do everyone a favor.

Even many "homeless" advocates - including a coalition of housing groups and the (cluelessly liberal) New York Times - have wanted the court to vacate the consent decree that's let Freedman run shelters for a quarter century.

Instead, she twiddled her thumbs, even though it was her own handpicked panel that said all the issues of the '83 case had been resolved long ago and that the matter should be put to rest.

Now, three years after that panel's recommendation, she finally issues a ruling - setting up yet another panel to study the case all over again.

And get this: She named a former head of the plaintiff group, the Legal Aid Society, to the three-member panel.

Where's the judicial "impartiality" in that?

Freedman has her teeth in this and won't let go. No doubt, if the new panel also demands an end to the case, she'll find some other way to delay yet again.

It's not right.

Never mind all the time and money wasted over 25 years.

The biggest problem is that her continued oversight actually makes it difficult for officials to improve the system.

Even the most minute changes must be crafted so as to pass muster with Freedman - right down to the kind of formula served to babies of families seeking aid.

Yet Freedman isn't a part of an administration elected by New York voters.

She doesn't have to worry about the budget or tax implications of her rulings.

And her reign over this issue means voters can't fairly hold City Hall accountable for its shelter policy.

Enough is enough.

Mayor Bloomberg and his Department of Homeless Services, building on Giuliani-era reforms, have created a fair and humane shelter system.

Freedman has no moral claim on the system, if she ever did.

As for the ethics of her obstinacy - well, maybe it's time for Judith Kaye, chief judge of the state Court of Appeals, to have a sidebar conference with her obdurate colleague.

Quite apart from the specifics of the case, Judge Freedman's conduct is disrespectful of the rule of law.

She needs to quit it.

Saturday, September 15, 2007


NYDAILYNEWS.COM Thursday, September 13, 2007

Lesson in stupidity

How ridiculous the Manhattan Family Court system looks by refusing to let Grace Yang Carter attend the good school her mother wants to send her to ("Lessons in bitterness," Sept. 7). The father is obviously using the child to punish the mother. Shame on Judge Joan Lobis for aiding and abetting this folly. What a disgrace.

Bridget Grace Marks
Mothers for Judicial Accountability


Exclusive: Third-grader Grace Yang Carter could be attending one of the city's top public schools - if it weren't for her parents' raging divorce battle." name=storyDesc>
Grace Yang Carter (l. with mother) is caught between
parents Esther Yang and Edward Carter.
Yang wants Grace to attend competitive PS 6,
while Carter wants her to stay at failing Staten Island school.

Exclusive –

Divorce battle keeps girl from top city school
Friday, September 7th 2007, 4:00 AM

Third-grader Grace Yang Carter could be attending one of the city's top public schools - if it weren't for her parents' raging divorce battle.
Grace's mother won the girl a spot at the upper East Side's highly regarded Public School 6 under the federal No Child Left Behind program.
But Grace's dad, who lives on Staten Island, has refused to move the girl from PS 16, a failing school there, saying the commute to Manhattan is too long.
Grace's mom, Esther Yang, is furious.
"This is the most coveted waiting-list school in the city," she said. "I don't have the money to live in that zip code. How can any caring parent deny her this opportunity? I don't get it!"
Grace, 8, lives with her dad, Edward Carter, on Staten Island half the week, and with her mom in Manhattan the rest of the time.
As part of a 2004 divorce decree, Carter was granted the final say on Grace's education.
He accused Yang of wrongly applying to PS 6, 40 blocks from her Tudor City apartment, in effect bumping his applications to three high-performing schools 10 minutes from his home.
"I did not think it is in Grace's best interest to be riding in a yellow bus nearly 15 miles on the Brooklyn-Queens Expressway, approximately 1-1/2 hours each way, to and from school every day," the father said. "She'd become a commuter at 8 years old. Scores are one thing. But she also thrives on the stability, consistency and warmth of attending school close to me."
Yang countered that she commutes 18 miles to take Grace from her Manhattan apartment back to the failing school on Fridays and Mondays.
"I will gladly pick up Grace from his home and drop her at [PS 6] every day and back, whatever it takes," she said.
Yang begged a five-judge Appellate Division panel earlier this week to overrule Manhattan Supreme Court Justice Joan Lobis, who refused to force the transfer.
Yang, a Chinese-American yoga instructor, said Grace scored in the 92nd percentile in elite private school tests, and doesn't want her daughter at a school branded "in need of improvement" by the state.
Yang also charged Grace "got pushed down the stairs by the boys" at PS 16 in St. George. "Most of Grace's friends transfer out of that school to Manhattan," the mom said.
But Carter argued Grace would lose out on after-school play dates and activities like art lab at Snug Harbor along with "dance class, swim class, time with me at the park, zoo, library."
"She would miss time socializing with her classmates," he said. "All that would end. She'd be sitting on a bus."
Grace is enrolled in an accelerated dual Spanish-English language program, he said, and scored well on standardized tests at PS 16.

Grace was to begin class Tuesday at PS 6, where 90% of students test at or above grade level. But Carter reenrolled her at PS 16, calling it "the best of options available." Only half the students at PS 16 score at grade level and 86% qualify for free lunch.
He said he is working with the Education Department to move her to one of his school choices.
Whiz kid caught in parents' feud begs to attend better school

BY NANCIE L. KATZ - DAILY NEWS STAFF WRITER Sunday, September 9th 2007, 8:26 AM
Exclusive: The 8-year-old girl caught in an educational tug of war between her divorced parents wants to ditch her failing Staten Island school for a better-rated one in Manhattan." name=storyDesc>

Grace Yang Carter says Public School 6 in Manhattan is a 'better school' than Public School 16 in Staten Island
The 8-year-old girl caught in an educational tug of war between her divorced parents wants to ditch her failing Staten Island school for a better-rated one in Manhattan.
Grace Yang Carter said Public School 6 on the upper East Side, not too far from where her mom lives, is a "better school" than Public School 16 in St. George, close to her dad's home.
"My mom really wants me to to go [to PS 6] but I really want to go also," she told the Daily News.
"I like PS 16. But I'd rather go to school in Manhattan. I want to be challenged. I'm not challenged there. [PS 6] would be hard for me and that's what I want."
Even though she's taking sides on the issue, the bright, bouncy third-grader said she feels uneasy about her parents' battle.
"One parent says one thing, and one parent says one thing and I get stuck in the middle," Grace said. "Then I get all angry!"
Grace's mom, Esther Yang, won her daughter a coveted spot at highly regarded PS 6 through the federal No Child Left Behind act.
But her dad, Edward Carter, refused to yank her from failing PS 16 because the commute from Staten Island to PS 6 in a yellow bus would take about 90 minutes each way. He applied to three high-performing schools on Staten Island.
Grace splits her time between the two parents but under their 2004 divorce decree, Carter was granted the final say on Grace's education. So Esther Yang has asked a Manhattan appeals court to overrule Carter and let Grace go to PS 6.
Grace, who scored in the 92nd percentile on elite private school tests, said she's way ahead of her classmates at PS 16 - where half the kids read below grade level.
While she reads Nancy Drew books, her school chums are struggling through Dr. Seuss, she said.
Fellow students stumble over basic math, but "I get done really quick. I read or draw," she said.
"I try to do my work. Usually it's too loud and I can't do it. They [students] run around the room, throwing things, every day," she said.
"The older you get, the less-mannered they are. I found a way to figure out how to get everyone to be quiet! Scream on top of them: 'Be quiet!'"
Carter agrees that Grace should be in a better school.
But he accused his ex of wrongly applying to PS 6, which is 40 blocks from her Tudor City apartment, effectively nixing his applications to schools within 10 minutes of his home.
The dad said he does not want Grace to spend hours commuting or lose the "stability, consistency and warmth" of attending school close to him. If she goes to school in Manhattan, he said, she will miss out on play dates, afterschool activities and sleep.
Grace is less worried about the long trip to PS 6. "Mom will pick me up and take me," she chirped.
It was Grace's mom who alerted The News to her plight - which angered Carter.He accused the mom of exploiting and endangering their daughter. But Yang - who has asked the feds to intervene in her case - said she had no choice but to go public.
"I'm trying to protect her best interest," she said. "To do nothing would make me negligent as a parent."

Sunday, September 2, 2007


Back to the Soaps

Rudy Giuliani may make $195,000 a year, live in free housing (even if he's been exiled to a small guest room), and have funds tied up in real estate and retirement accounts, but his bank balance is a mere $7,000, his divorce lawyer, Raoul Felder, said in court yesterday. Felder did not take into account the mayor's $3 million book deal.
Meanwhile, Judge Judith Gische denied Felder's pleas that she remove herself from the closely watched divorce proceedings. The judge also rejected a request by Bruce Nathan, former husband of the mayor's very good friend, that she preside over his suit seeking custody of the Nathans' 16-year-old daughter. Another judge will hear that one.


For Arbiters in Custody Battles, Wide Power and Little Scrutiny
By Leslie Eaton
The New York Times
May 23, 2004

When warring parents head to court to fight over child custody in New York, their lawyers often let them in on a little secret: The most powerful person in the process is not the judge. It is not the other parent, not one of the lawyers, not even a child.
No, the most important person in determining who gets custody, and on what terms, is frequently a court-appointed forensic evaluator. Forensics, as they are often called, can be psychiatrists, psychologists or social workers; they interview the families and usually make detailed recommendations to judges, right down to who gets the children on Wednesdays and alternate weekends.
And the judges usually go along.
Forensic reports, which the parents pay for, can cost as much as $40,000 or even more. There are no standards for who can be an evaluator or what should go into an assessment. The court system does not track who gets these lucrative appointments, much less whether evaluators tend to favor fathers or mothers or joint custody.
Some lawyers and parents suspect that cronyism plays a big role in some appointments, but given the secrecy surrounding matrimonial cases, that is hard to prove, or disprove. Others say there is nowhere to lodge complaints about mistreatment. And many —— including some forensics —— question whether there is any scientific basis to justify the evaluators' recommendations.
In Suffolk County, judges repeatedly appointed a psychologist who was not licensed to practice in New York State. In Manhattan, an evaluator remained on a case even though there was evidence that he had had business dealings with one spouse's lawyer. In Westchester County, an expert charged parents $57,000 for a report that the judge found extremely biased toward the father.
Though they have been around for years, court-appointed forensics have become increasingly commonplace —— and controversial —— in New York, which may be the high-conflict custody capital of the nation. But similar debates about custody evaluators are going on across the country, experts say, as divorce rates continue to rise and courts try to cope with the needs of children caught up in a contentious process.
"It's boiling over everywhere," said Peter Salem, executive director of the Association of Family and Conciliation Courts, based in Madison, Wis.
In Arizona, the governor recently signed a law changing the state's process for investigating complaints about psychologists, in part because of controversy over forensic evaluations. In Louisiana, a committee of the state board governing social workers is considering creating standards for evaluations.
And over the last few years, California has adopted a series of court rules that require training for forensics, set standards for evaluations and provide mechanisms for filing grievances against evaluators, said Philip M. Stahl, a psychologist and frequent lecturer on custody evaluations. "It's the only state where the rules are very specific," he said.
In New York, forensics' roles are being debated at judicial conferences, psychiatric conventions and impromptu meetings of disgruntled parents. Even the court system has decided to take another look at them, through a commission appointed in February by the state's chief judge.
Forensics "have really become arbiters of what happens in a case," Raoul L. Felder, the divorce lawyer, said disapprovingly. "I just think somehow they've seeped into the judicial process."
Some people think that is as it should be. "With some exceptions, I didn't try a contested custody case without a forensic assessment," said Philip C. Segal, a former Family Court judge now in private practice. "They were extremely helpful, even critical."
Custody cases are difficult and emotionally fraught, he said, adding that judges need help "analyzing the family dynamics, analyzing the parents' respective abilities." Judges must decide custody cases based on the best interest of the child in question, and they can appoint a "neutral expert" whenever they think it would be helpful in making that decision.
Some judges ask the parties' lawyers to agree on a forensic or to provide a list of candidates; others simply name an evaluator. Some judges have very specific questions they want addressed; others just call for an evaluation. Many, though not all, want detailed recommendations.
The American Psychological Association's guidelines state that while evaluators may determine whether either parent has severe psychological problems, that is not their main goal. Rather, evaluators are supposed to judge the parties' "parenting capacity" and how that fits the psychological needs of the child.
Forensics themselves do not agree on how to conduct a proper examination. Some order psychological tests, while others avoid them; some interview baby sitters and teachers, while others do not.
In the end, the evaluator gives the court a report that usually makes detailed recommendations about custody arrangements. The parents are not generally given copies; in some cases, they are not even allowed to read the reports.
At that point, the parents usually settle, "which we would much prefer, for the parties' sake," said Justice Jacqueline W. Silbermann, the administrative judge for matrimonial matters in New York State. The reports' usefulness in encouraging settlements is one reason judges order them, she said.
But what pleases the judges sticks in the craw of some litigants, who say they feel bludgeoned into settling by a report that does not favor them, even when they believe that the report is deeply flawed. Some lawyers contend that the evaluations actually discourage settlements in certain cases because the favored party feels no need to compromise.
The only way to challenge a forensic report is to go through a full trial and then cross-examine the evaluator; parties can also hire their own experts to critique the court-appointed forensic, but generally cannot have the family evaluated by someone else.
In the meantime, judges are reading evaluators' reports and making decisions based on them, with no way to know whether the observations and conclusions are correct, said William S. Beslow, a prominent matrimonial lawyer in Manhattan.
"In eight years, I have not participated in a case with a forensic report that was not substantially erroneous in one of its major conclusions," Mr. Beslow said. "And some are so wrong that they have disastrous consequences for families."
Underlying all the concerns about forensic evaluators is the question of whether they are offering the court scientific expertise or unsubstantiated opinions.
Jeffrey P. Wittmann, a forensic who has done hundreds of evaluations, says that his colleagues have been giving the courts both, and that they should stick to the scientific evidence. Dr. Wittmann, co-director of the Center for Forensic Psychology in Albany, said he stopped making specific recommendations to judges six years ago, and has urged colleagues to do the same.
The reason, he said, is that forensics do not really know, with any degree of certainty, what is in a child's best interest. Little scientific research on the subject exists.
Forensics do provide courts with useful information, he said, but drawing conclusions about the child's best interest and making recommendations on custody and on visiting is inappropriate, even unethical. "We have become like mini-judges," he added, "and it's a big mistake."
Among psychiatrists and psychologists, Dr. Wittmann's argument is far from the most extreme. William O'Donohue, a psychology professor at the University of Nevada, Reno, is calling for a moratorium on forensic evaluations until more research is done.
"Psychologists don't have the knowledge to do what they attempt to do when they do custody evaluations," he said.
Many custody decisions, he said, involve not scientific findings, but competing values, like a father's wish that his child excel in sports versus the mother's emphasis on studying.
While mental health experts have been debating these issues for several years, the legal world has been slower to recognize them, at least in New York.
Enter Timothy M. Tippins, an Albany lawyer who increasingly specializes in cross-examining forensic experts. For almost a year, Mr. Tippins has been writing articles in The New York Law Journal questioning the role and expertise of forensic evaluators in custody cases. He has teamed up with Dr. Wittmann to write a paper titled "Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance."
Among its recommendations is a call for judges to "begin to help the psychology discipline rein in itself" by not demanding or accepting specific custody plans.
In March and April, the two presented their arguments to conferences of New York State judges; later this year, they will speak to judges at the state's appellate level.
Some judges have welcomed his arguments, Mr. Tippins said. "I think they had on their antennae that something was amiss with these reports."
In part as a response to Mr. Tippins, Dr. Alex Weintrob organized a symposium on the scientific basis of expert testimony in matrimonial disputes at the American Psychiatric Association's annual meeting this month in Manhattan.
Dr. Weintrob, a well-known child psychiatrist who does evaluations, said later that "there is more science than some people give us credit for." On the other hand, he added, "it is important that we be aware of our limitations," citing as an example the lack of follow-up studies to see if forensics' predictions worked out. "We all know it and are a little embarrassed by it."
Even proponents of forensic evaluations are troubled by the secrecy that envelops the business, and the large sums of money that change hands, by order of the court.
"It's an industry, and it's unregulated, and it affects precious family rights," said Andrew I. Schepard, director of the Center for Children, Families and the Law at Hofstra University. "It would be lots better if this process were more transparent."
The secrecy alone raises questions in the minds of some parents. One woman, a Manhattan financial analyst who spoke on the condition that her name not be used because her court case is continuing, said she had heard from other parents that the evaluator in her case had a history of recommending that custody go to fathers. But, she complained, there is no way to know for sure.
In Kaye v. Kaye, an extremely bitter divorce case in Manhattan, the mother discovered that her court-appointed forensic had participated in a business venture with four other people involved in her case, including her ex-husband's lawyer.
This gave her grave doubts about how neutral he truly was, she said, speaking on the condition that her first name not appear in print. Judges are required to disclose their ties, she said, "and the same should be true of neutral officers of the court."
Justice Judith J. Gische denied the woman's request for a mistrial, ruling that the business —— a limited partnership with a divorce-related Web site called, now defunct —— was a for-profit educational venture, and that the lawyers, forensics and others involved were not "in business" together. An appeal of that decision is pending.
But the conflict-of-interest allegations about SoftSplit, which were reported by The New York Post last year, are still stirring up such hard feelings among lawyers and forensics that Donald Frank, the lawyer for the mother, refused to discuss the case.
Few parents are willing to talk publicly about their experiences for fear of seeing painful family matters aired in the press, or of being dragged by into court by the other parent. They also say they are often dismissed as disgruntled litigants who are angry that the evaluator did not favor them (which, of course, they often are).
The American Psychological Association's ethics committee reports that a rising percentage of the complaints it receives involve forensic evaluations. And Dr. Spencer Eth, a member of the ethics committee of the American Psychiatric Association, said local branches of his group also investigate many complaints about forensic evaluations. While such complaints seldom result in a psychiatrist's being suspended or removed from the association, he said, doctors are sometimes reprimanded or educated about the proper way to conduct evaluations.
The association takes on this role in part, he said, because state licensing boards tend to be ill-equipped to deal with problems that crop up in psychiatric practices, including some that are almost etiquette issues: a doctor's rudeness, for example, or his failure to return telephone calls.
New York's court system does not have a formal mechanism for receiving complaints about forensics, and because they are officers of the court, they cannot be sued for malpractice.
The rules governing matrimonial matters are being re-examined by a commission appointed by the state's chief judge, Judith S. Kaye.
The commission will examine the role and use of forensic examiners, said Justice Sondra Miller, the appellate division judge who is leading the group. After holding public hearings, she said, it will make recommendations to Judge Kaye, probably in about a year.
In the meantime, however, some lawyers say they believe that judges are becoming more skeptical about forensic reports, and may use them a little less. One such lawyer is Norman M. Sheresky, who represented a mother who prevailed in a Manhattan court despite an evaluator's recommendation in favor of the father. The judge tossed out the report's findings as biased, he said.
"I think that will happen more and more," Mr. Sheresky said. "I think the judges are getting wise."

JUDGE JUDITH GISCHE - SOFT SPLIT - A group of highly paid experts, whose testimony has helped decide hundreds of child-custody cases in the city,...

By Brad Hamilton
New York Post
May 18, 2003

A group of highly paid experts, whose testimony has helped decide hundreds of child-custody cases in the city, is under investigation over whether they disclosed to the court and clients that they had gone into business together, The Post has learned.
Sherrill Spatz, the matrimonial court's inspector general for fiduciary appoint-ments, is looking into whether any conflict-of-interest rules were broken when 37 supposedly independent shrinks and child guardians became affiliated through an Internet venture, yet were sometimes on opposing sides of custody wrangles.
The experts under examination include some that made big bucks in custody battles involving former Mayor Rudy Giuliani, Revlon CEO Ron Perelman and publishing queen Judith Regan.

The experts were recruited by a company called Soft Split LLC and were promoted on a Web site that offered tips on how to negotiate divorce and custody fights. Some experts also participated in online chat rooms accessed through the site.
That business link was never revealed in court when some of the experts were assigned by judges to at least eight known cases, according to a group of parents who pushed for the probe.
Members of the parents group suspect many more cases were affected.
One member of the group, who asked not to be named, was shocked to discover that her ex-husband's lawyer was part of Soft Split - along with all four experts assigned by the court to her case.
The woman's lawyer demanded a conflict-of-interest hearing in February, during which three Soft Split experts admitted that they had hoped to make money from their affiliation with the Web company.
Manhattan matrimonial Judge Judith Gische denied the conflict-of-interest motion after three Soft Split members testified they had not, at that point, profited from the venture.
But after that hearing, the company's Web site,, was closed down.
Prior to then, experts listed on the Web site as Soft Split "team members" included some of the biggest names in the divorce business - law guardian Jo Ann Douglas, psychiatrist Stephen Herman and psychologist April Kuchuk, all of whom can get six-figure paychecks from their court appointments.
Soft Split was launched in 2000 with half a million dollars in investments from various individuals, according to the company's former lawyer Peter Corrigan.
Former real-estate developer Richard Pink, the brains behind Soft Split, could not be contacted for comment. Attempts to contact other Soft Split officials also were unsuccessful.
The company is still an active corporation according to the state Department of State.
Financial agreements between Soft Split and its experts have not been released, but some Soft Split "team members" interviewed by The Post said they believed that they would eventually make money once the company took off.
But the company floundered when the dot-com bubble burst, and it seems Soft Split is not widely known in the legal world.
In an interview with The Post last week, Justice Jacqueline Silbermann, the administrative judge for the state's matrimonial courts, said she had never heard of Soft Split even though she officiated at the marriage of high-profile lawyer Robert Dobrisch, who was listed as a Soft Split "team member."
After the Gische ruling in February, members of the parents group decided to take their beef to Spatz.
Spatz wouldn't comment, but sources familiar with the complaint said her office was hoping more parents would come forward to help with the probe, which began 10 days ago.
The parents group has launched a Web site, to find other cases.
"The fact that these people are in business together just isn't right," said Beth Cockrell, a financial consultant and member of the parents group.

New York Post
May 18, 2003
-- Critics of New York's scarred matrimonial courts say the Soft Split probe will only scratch the surface of a troubled system.
Fee gouging, shoddy work and an insider's mentality have allowed a handful of lawyers and shrinks to cash in on all the top cases, they say.
"It's a little club, and these guys wouldn't consider [Soft Split] a conflict [of interest] because they're all in business together anyway," said civil-rights lawyer Richard Emery, whose bitter divorce from actress Lori Singer cost him hundreds of thousands of dollars.
Several lawyers of matrimonial and custody fights said judges award huge fees to a select number of experts - often without questioning their bills.

"You see the same names over and over," said Howard Benjamin, an expert on legal ethics who has testified that Soft Split members violated conflict-of-interest rules by not revealing that they had formed an online company to market their expertise.
Once an expert is assigned to a case, dueling parents are forced to pay his or her fees.
Psychiatrists can charge $5,000 a day. Guardians can get $300 an hour.
"It's all just ca-ching, ca-ching," said Judith Regan, who spent $100,000 on experts in her divorce and custody fight with ex-husband Robert Kleinschmidt.
But child-custody experts say their work and testimony is vital in allowing judges to decide kids' futures.


The System Is the Crime
By Jesse Sunenblick
Posted 09-29-06

Litigators sure seem to think the world of Judge Judith Gische — even those whom she's ruled against. The problem is that New York state's wretched judicial election system can make even a luminary of the bench appear to be conflicted.
Even if a judge is putatively brilliant, the particulars of his or her excellence can be overshadowed by surrounding failures that are essentially systemic. Witness Judith Gische, the Manhattan judge known for presiding over Rudolph Giuliani’s divorce case.By various accounts Gische, 50, is “just plain smart,” “understanding of the issues,” “rational,” “caring of her job,” and “engaged and prepared and very thoughtful.” “Practically every member of the matrimonial bar has appeared before Judith Gische,” said Raoul Lionel Felder, the divorce attorney for Giuliani. The former mayor was ordered in 2002 by Gische to pay his ex-wife, Donna Hanover, more than $6 million (plus yield their upper East Side apartment.) The settlement came after 18 months of courtroom acrimony.Yet notwithstanding that outcome, Felder, now the chair of the state Commission on Judicial Conduct, contributed $3,000 to Gische’s uncontested run for Civil Court in 2003, according to state Board of Elections records. The donation equaled the biggest among the more than $61,000 in contributions that Gische raised. According to binding rules set by the Office of Court Administration’s Judicial Campaign Ethics Center, judges should not learn who their donors are. But judges are also prohibited from taking contributions from parties who “may reasonably be expected to come before the candidate if elected” or parties who “have come before the candidate so recently that it manifests an appearance of impropriety.”Which raises a tidy little question: How are judges supposed to prevent courtroom appearances by donors whose identities they’re not supposed to know in the first place?“I would say that there is no statute or promulgated rule that prohibits a judge or a judicial candidate from knowing his or her contributors,” said Robert Tembeckjian, administrator and counsel for the judicial conduct commission. “This is a practice based on an advisory opinion from the state bar association from the 1970’s.”In reality, said Hofstra University School of Law ethics professor Monroe Freedman, “whoever is close enough to the judge to be handling the campaign and the financing is very likely to let the judge know. And the lawyers are likely to let the judge know, more or less subtly, that they have helped out. I don’t trust this kind of system. Some people might say I’m a cynic, some might say I’m a realist.”Referring to Felder’s contribution, Gische’s treasurer, attorney David B. Karel, said, “Judges don’t know who’s contributing to their campaigns. I never told her who contributed how much money. I think there are some attorneys who have such a belief in the judicial system that they feel the money is well spent. It’s commendable that somebody would make a large contribution to a candidate, despite the fact that the candidate will not know who contributed to their campaign.”When asked if she knew the identities of any of her donors — many of them matrimonial attorneys — Gische was emphatic. “I can’t, I wouldn’t, and I don’t. I’ve raised money, and I have an independent treasurer. But it’s a blind process. I’m not supposed to know, and I don’t know.”In fact, at least three of Gische's donors with contributions listed at the board of elections litigated before her shortly before or after she won reelection. The appearance by Allen Mayefsky (who gave $250) was confirmed by a staff member at his office. The appearances by the other two, Bernard E. Clair ($500) and Joel B. Mayer ($150), are on record at the New York County Supreme Court’s Trial Support Office.But is this an impropriety, or an absurd contradiction within the system?“If not lawyers, then who would contribute to campaigns?” said Gische. “I don’t think the general voting public would be making contributions to judicial elections.”In terms of jurisprudence, Gische garnered a reputation for independent-minded diligence in the Matrimonial Part, where she sat from 1997 until 2005.A cauldron of emotions — and, in Manhattan, media attention — the Matrimonial Part often produces decisions in heavily contested custody cases that revolve around “expert” reports on the parties and the children prepared by forensic psychiatrists.
“In the past, judges have rubber-stamped these reports too much,” said Donald Frank, a matrimonial lawyer at Blank Rome with more than 35 years of experience. “It used to be that whatever the forensic said, a judge did. I think Gische understood that whatever is said is not empirical or scientific. I think she did a good job making up her own mind, not abdicating her ultimate role by what the experts say.” In the cases Frank tried before Gische, he said, “she had keen insight into the parties, and what the dynamics were in the marriage. Let’s face it: The Matrimonial Part is not the easiest court to sit in day after day, year after year. . . but lawyers have always enjoyed appearing before her. They always felt they were being accorded respect and listened to.”Raised in Bayside, Queens, Gische grew up in a “pretty working class” neighborhood. “My parents had middle class values,” she said. “They were very pro-education.” Her father worked as a cutter and factory foreman in the garment business, and at one point had his own custom blinds business, while Gische’s mother was a bookkeeper. Gische received her undergraduate degree and law degree from the State University of New York at Buffalo. She then spent two years as a clerk at the Appellate Division, Third Department, and eight years after that at Richenthal, Abrams & Moss, a firm that specialized in real estate and commercial matters. In 1990, Gische responded to an advertisement in the New York Law Journal seeking nominees for Housing Court judgeships. She submitted an application and ultimately was appointed, after successfully navigating bar association and various screening panels and getting the nod from Deputy Supervising Judge Fern Fisher. “Doesn’t every lawyer want to be a judge?” Gische said, with the kind of humility admirers often point out. “I thought it was a good career move, but I was very uncertain my application would go anywhere.”In 1993, Gische was elected to Civil Court in Manhattan, but four years later Administrative Judge Jacqueline Silbermann offered a promotion, asking Gische to help organize the Bronx Civil Term’s Matrimonial Part, which was lagging administratively. Thus began an eight-year tenure as an Acting Supreme Court Justice handling matrimonial cases.After she learned she would face no opponent in 2003, Gische filed papers to campaign for the Supreme Court. She became eligible after being approved twice within four years by the Democratic Party’s screening panel.But she withdrew her name from consideration shortly before the party’s convention when it became clear, according to her consultant, Jerry Skurnik, that among district leaders “she was nobody’s first choice” for the two vacancies in Manhattan.If politics prevented an excellent judge from moving up the career ladder, in many ways Gische’s move to the General IAS Part is a return to what she knows best. Asked if the move required any brushing up on procedure, Gische said, “Everything. I’m always learning. A lot of labor law accident cases, I’ve had to learn that. And insurance cases. I’m always looking at the law.”As for pet peeves, Gische described herself as a time freak. “I like timeliness. It shows consideration for other people who are part of the trial process. Particularly when you have a jury.”Since her move to IAS, Gische has garnered praise for her handling of other cases. In Gherghinoiu v. ATCO Properties and Management Inc., which revolved around an issue of “special employment” in a worker’s compensation case, Gische denied defendant’s attorney Gail Ritzert’s motion to dismiss.
Yet Ritzert offered praise: “She was prepared. Every time we went before her — motions or conferences — she was familiar with the case and background. She did her homework.”In a recent civil rights case in which an Orthodox Jew sued California photographer Philip Lorca diCorcia for taking his picture without permission and then hanging it in a gallery, Gische impressed diCorcia’s attorney, Los Angeles corporate litigator Lawrence Barth. “It was a motion for summary judgment, and she gave us about an hour to argue, which I thought was generous. She was interested and engaged, and had obviously read the briefs thoroughly.”“It was a fascinating case,” said Gische. “The balancing of what constitutes privacy, which is important in our society, and the First Amendment rights of artists is a delicate balance. You don’t often have cases that bring issues like that together that frame the fabric of our society, define who we are as a society. I think the proof of this was, there wasn’t a lot of case law out there for me to depend upon and reach a conclusion in this issue.”On a more controversial note, in 2003, the New York Daily News and New York Law Journal reported on Gische’s role in overseeing the initial guardianship hearing that ultimately led to a scandal involving Brooklyn Supreme Court Justice Michael Garson. (His brother Gerald, who faces bribery charges in an unrelated case, said this week that he would not take a plea deal.) Currently suspended with pay, Michael Garson stands accused of using his power-of-attorney on behalf of his elderly aunt, Sarah Gershenoff, to steal hundreds of thousands of dollars from her. Gische presided over one part of the dispute and approved a settlement that the Law Journal described as “apparently favorable to the Garson wing.”Equally at issue, however, was Gische’s decisions to seal the court record and refrain from reporting Garson’s alleged wrongdoing to the judicial conduct commission.“If she’s a judge, she’s an officer of the law,” said Freedman, the Hofstra ethics professor. “She became aware in the course of a proceeding that there was at the very least a strong appearance of felonious conduct, certainly unethical conduct, and . . . at the very least she should not have covered it up by sealing the record and not having it investigated by a prosecutor or a judicial ethics body.”“That’s an opinion I’d expect from a professor,” said attorney Robert Kruger, whom Gische appointed to the role of financial guardian in the case. “In the practical world, people’s behavior can depart from the norm or a professor’s notion of what the norm should be. A professor is in a cocoon. I think their opinions are worthless.”In fact, Gische said, her main responsibility was to decide whether Ms. Gershenoff needed a guardian and then to appoint an independent party to serve that role, whose responsibility it was to investigate any claims Ms. Gershenoff might have had against anybody.“I had had a bunch of squabbling family members who were raising extravagant allegations back and forth,” Gische said. “I hadn’t made any findings, all I had were the allegations. There was nothing at that point that would have risen to the level that would have required me to report something to the Commission on Judicial Conduct.” “If every time somebody raises an allegation I have to send it to some grievance committee, then I would have been sending out all my cases. I think it has to rise to a level of substantial evidence, and we never got that far. I think what I did — I facilitated an investigation of the allegations by somebody independent. Just because I didn’t send it to the [judicial conduct] commission doesn’t mean I didn’t deal with it in a serious way, including not taking no for an answer of Garson’s claim that he couldn’t get the documents.”As for sealing the file, Gische noted that she did do so “by consent of all of the parties, adversarial parties, I might add.” She continued, alluding to the state mental hygiene law that deals with the appointment of guardians for incapacitated people. “In part — and this issue comes to light all the time, in the Brooke Astor case, for example — when you have these Article 81s that involve very sensitive information regarding elderly people with certain medical information, you don’t want to thrust it into the public.” In terms of statistical performance evaluation, Gische can definitely point to good numbers. According to the Office of Court Administration, in 2005 Gische’s backlog stood at 13.6 months — five months under the Manhattan Civil Terms’s average for that time period. Between 2000 and 2005, appellate courts reversed or modified Gische 16 times. Her reversal rate was 26.7 percent, compared to an average of 36.7 for her colleagues in the Manhattan Civil Term.“Honestly, Judith Gische is one of the most extraordinary people I’ve ever known,” said longtime matrimonial attorney Norman Sheresky, a $250 donor to Gische’s 2003 Civil Court campaign whose colleague at Sheresky Aronson & Mayefsky, Allen Mayefsky, was among the donors who appeared before Gische near the time of his own contribution. (Five of the firm’s 11 lawyers donated to Gische’s campaign.)
“I think she cares, really cares, about what’s in front of her,” continued Sheresky. “In fact, she might be the least pre-judgmental judge I’ve ever appeared before. You find good judges everywhere, but the percentage of highly knowledgeable judges is probably less in matrimonial. Everything’s an emergency that has to be handled: The light’s been turned out; the husband took the kids away; I’m about to be evicted . . . there’s one emergency after another.” In the weird interplay between a widely respected judge and the shabby election system that surrounds her, handicapping Sheresky’s sincerity is not easy. But he provided at least one anecdote that transcended the obsequious. “I’ll never forget,” he said. “I had a trial in front of her. Just before lunch, I objected to some testimony — I said it was confidential communications between husband and wife, under the New York statute, one of the finer points of matrimonial law. I don’t think she’d been in the part more than a couple of weeks. And she said, ‘Oh, let me look at that over lunch.’ She came back and she said, ‘You know, Mr. Sharesky, that was really interesting. Your motion is denied.’ She knew the statute perfectly by the end of lunch.”