Bar considers filing brief to support Jung

PHOTOGRAPHER: Jim McGuire

The Fulton County Bar Association will meet Monday to decide whether to attempt to file a “friend of the court” brief supporting the final appeal of Fulton County Family Court Judge David F. Jung.

In February, the state Commission on Judicial Conduct ruled Jung must be removed from office for violating the rights of five individuals he sent to jail in 2005 after either denying them lawyers or failing to have them present in court, or both.

Jung and his lawyer, Vincent Capasso Jr. of Schenectady, have appealed the commission ruling to the state Court of Appeals.

The Bar Association will meet in special session at 3 p.m. to decide whether to file a motion with the court seeking permission to submit the brief.

A proposed brief prepared by Anthony Casale of the Mayfield firm of Schur & Casale is being circulated among bar members.

The brief makes the argument that Jung committed “a human error,” and that he “acted in a manner which he believed at the time was appropriate.”

Bar Association President Russell P. Martin declined comment on the brief and the meeting.

Casale and Capasso were not available Friday to comment, staff members in their offices said.

Casale compares the commission’s decision to remove Jung to other commission rulings imposing lesser penalties. He cites cases in 2005 in which one judge was censured for jailing an acquitted litigant by altering a commitment order to reflect a new charge and a second was censured for fabricating a conviction to hold a litigant while federal Immigration and Naturalization agents could arrest and deport the individual.

Arguing that judges must have freedom to rule, Casale says, “judges must be independent and the removal of Judge Jung, whose prior record is unblemished, for an error in judgment which was not motivated by selfishness or venality, will have an unsettling effect on the independence of the judiciary in this state.”

The brief discusses Jung’s 40-year career, the numbers of cases he handled as a private attorney and those he presided over since his election in 1989. It also reviews his record of community service on the boards of such organizations as Boy Scouts of America, the YMCA and the Lexington Center.

According to state law, to file the amicus brief with the Court of Appeals the party must demonstrate that either the litigant is “not capable of a full and adequate presentation and that [the friend of the court brief] would remedy this deficiency,” or that the outside party “could identify law or arguments that might otherwise escape the court’s consideration.”

The outside party must obtain permission from the court by motion to submit a brief.

In its February removal decision, the commission cited the details in the five cases under review and found Jung’s “continued insistence that his actions were consistent with the law and his insensitivity to the overriding importance of protecting the rights of litigants, as shown by his record, strongly suggest that if he is allowed to continue on the bench we may expect more of the same.”

The state commission decision said: “The conclusion is inescapable that [Jung’s] future retention on the bench would continue to place the rights of litigants in serious jeopardy.”