Recently Brooklyn Supreme Court Judge Arthur Schack recused himself from a retrial of a case for appearances’ sake after engaging in some highly questionable conduct-at least according to defense counsel. Miller v. Lewis, 11358/09 (N.Y. Sup. Ct., Kings Co.) Although Justice Schack claims that he was not biased against attorney John McDonough, according to McDonough, Judge Schack posted copies of McDonough’s image in his courtroom with the word “Wanted” printed on it, and he drew a bull’s-eye on a head shot of McDonough. The jurist also allegedly used a vulgarity to describe McDonough when the attorney’s colleague appeared before Judge Schack.
Schack did not address McDonough’s accusations specifically, but he did claim that the court “went out of its way” to accommodate McDonough personally when scheduling conflicts arose, including once when the attorney had to visit his sick mother.
In the original trial, Schack declared a mistrial. The suit was brought by a woman who was severely injured when she was hit by a Duane Reade truck. The mistrial was declared after the case entered the third week and jurors begged the judge to let them return to work. McDonough represented Duane Reade.
The court maintained that it “has no bias, animus or hostility against Mr. Donough or his firm…Indeed, as made clear by Mr. McDonough himself, on the last day of the Miller trial, this court was ‘nice,’ ‘courteous’ and ‘respectful to counsel.’”
According to McDonough’s recusal motion, Judge Schack was so angered by a request from McDonough’s colleague to sign certain orders that he said “B—s—, I’m not signing it…Tell that piece of s— McDonough he should not have made you do this.” Judge Schack then purportedly handed the colleague the head shot of McDonough with the bull’s-eye drawn around the lawyer’s face.
Schack claimed that the colleague misstated what had transpired in court that day. There was no record of the alleged courtroom statements and the attorney’s affirmation was not accompanied by affidavits from witnesses to the conversation. On the other hand, the motion against Judge Schack’s recusal contained an affidavit from an attorney denying that the judge used the vulgar language attributed to him. The attorneys opposing the judge’s recusal maintain that the defense counsel was “judge shopping” in the hopes of getting the adverse decisions that Judge Schack issued reversed by another judge.
According to this same counsel, the “Wanted” sign was all part of the judge’s jocular nature in the courtroom and that in fact even McDonough laughed at it. Indeed, after Judge Schack issued the mistrial, McDonough stated that he would have no objection to the judge remaining on the bench for the retrial.