Judicial Reports: Why Is Diamond Still on the Bench?

By Heidi Bruggink
hbruggink@judicialstudies.com
Posted 12-12-07

Supreme Court Justice Marilyn Diamond has been investigated by the Commission on Judicial Performance, the Securities and Exchange Commission, and (more than once) by the FBI. Should she still be sitting? How would we know? 

Not many judges in New York have been probed by the federal investigators. But State Supreme Court Justice Marilyn Diamond has had that honor — more than once.

From multiple conflicts of interest between her financial holdings and matters before her on the bench, to one charge of out-and-out estate manipulation, Diamond has come under repeated official scrutiny.

And at least one of those investigations might not be over, according to judicial reform activist Anthony DeRosa, who believes the feds might simply be waiting for the judge to “act out again” before pushing ahead with the investigation.

Both Justice Diamond and a spokesman for the FBI declined to comment for this article.

Of course, given the presumptive secrecy surrounding judicial misconduct hearings, it’s hard to find out much of anything on probes of a current judge. We only know, for example, about the Commission on Judicial Conduct’s (CJC) current inquiry into Queens Supreme Court Justice Duane Hart because the judge himself requested a public process.

Such proceedings are reportedly made open less than one percent of the time — and only if the jurist in question makes the request. The CJC would have it otherwise, but the New York Legislature has left the decision to the accused.

Still, while the extent of Diamond’s misconduct is still a bit fuzzy, the known facts lead to one fairly obvious question: Why is Marilyn Diamond still on the bench?

According to DeRosa, then a researcher on Wall Street, his first encounter with Diamond led directly to one probe. In that 2001 case over whether Chase Manhattan Mortgage had the right to foreclose on his West Side co-op, the judge ruled that the company could proceed with the foreclosure. But Diamond failed to disclose that she held stock in its parent company, JP Morgan Chase.

“Unless all parties waived their objection, the judge should have disqualified herself in that case,” said Oscar Chase, Professor at New York University School of Law and Co-Director of the Institute of Judicial Administration. “I think that’s outrageous — and a violation of Section 14 of the Judiciary Law.”

DeRosa successfully appealed on those grounds in 2004, but the panel reversed its original ruling 4-1 in a rare unpublished decision two years later, finding that the judge “might not have realized JP Morgan Chase and Chase Manhattan Mortgage were related companies.”

A surprisingly forceful dissent penned by Presiding Judge Richard Andrias, however, “ripped his colleagues in the appellate division July 6 for rejecting a motion by reformer [DeRosa], blasting their action as ‘both unprecedented and contrary to law, " as reported in The New York Post.

DeRosa and his attorney, Tom Shanahan (now Governor Eliot Spitzer’s Deputy Commissioner at the New York State Division of Human Rights), agreed with Andrias. Shanahan told the Post, "This was a case of them circling the wagons to protect one of their own."

“When you’re wearing those black robes you can twist it any way you like,” DeRosa said in a recent interview. “But I just thought, 'This ruling makes absolutely no sense.' I couldn’t figure out what was happening.”

The Securities and Exchange Commission (SEC) apparently shared his confusion, launching its own probe into the judge’s holdings in 2003 — after DeRosa relayed documents detailing her purchases of Verizon and Price Communications stock in 2002. That year, the two companies merged in a $2 billion deal, only two years after Price’s CEO, a family friend, donated to Diamond’s reelection campaign).

For a list of her donors, click here. 

The SEC found that the justice had failed to disclose her stock holdings in the five other cases in her courtroom involving the telecommunications giant. 

Around that time, in November 2003, DeRosa stepped out of Wall Street and into the judicial activism world, forming the Alliance for Judicial Justice — a group now consisting of more than 200 litigants who feel they were victims of prejudice by Diamond and other judges — to conduct their own investigations.

According to an article in The New York Daily News that crowned Diamond “The Queen of Conflicts” in 2004, the justice had already heard 19 cases in which she or her husband, Franklin Weissberg, a former state judge, owned stock in one party, without disclosing the financial ties. At that time, former assistant U.S. attorney and New York lawyer David Cohen, who represented several clients challenging Diamond in court, told the Daily News, "I think Judge Diamond is absolutely corrupt.”

Manhattan attorney Gregory Gennarelli, however, defended Diamond’s actions, telling Judicial Reports, “My understanding is her family’s pretty well-connected in the city. It’d be hard not to have a conflict of interest.”
 
But DeRosa’s findings went far beyond some questionable holdings.

“I met with the FBI many times, and they couldn’t believe what I had found,” he said.

Some of those findings prompted the FBI’s 2003 probe of threatening letters the judge claimed to have received two years earlier, which it determined she had actually written herself — after, per DeRosa, “taxpayers paid several million dollars in NYPD protection for her” for three years of full-time security detail.

A New York Times article quoted the profiler, Ray Pierce, a retired detective and founder of the NYPD's criminal assessment and profiling unit, as saying, "She has a serious problem. She thrives on attention. She had a security escort to her daughter's wedding, she's very impressed with that.”

Again prompted by DeRosa, in 2005 the FBI investigated Diamond for her role in the estate of art heiress Natasha Gelman, who changed her will — while in the late stages of Alzheimer’s disease — to name Diamond a co-executor of her trust, a position netting the judge more than $1 million per year.

Federal judge Richard Berman ordered Diamond and two associates to enter settlement discussions with Gelman’s family, citing 24 illegal actions.

The CJC also dug into the matter in early 2004, according to Gelman’s cousin Jerry Jung, who told the Post that he testified to the CJC that Diamond lied when she wrote to a top state judge that she was "like a daughter" to Gelman — and that she forged his cousin’s signature on multiple documents.

(A related suit filed by Gelman’s family charged Diamond with “ripping off” an overseas foundation owned by the Gelman estate, causing its finances to fall from $40 million to $6 million in only 13 years. The litigation is still pending.)

And earlier that year, federal agents reportedly examined Diamond’s ruling in the 1999 custody case of heiress and alleged welfare fraud Linda Jacobs. Diamond awarded full custody to Jacobs, despite the children’s testimony to a court-appointed psychologist that she had beaten and abused them. According to the Post, the kids said that Diamond “ignored their wishes after they begged to live with their dad” and remain “deeply bitter” towards the judge.

Diamond had claimed in court papers that she didn't know Jacobs, but the two women lived on the same Upper East Side block and frequented the same nail salon for years, even — per the ex-husband’s report — having simultaneous manicures the night before one of Jacobs’ Family Court hearings. Jacobs also served as a broker for a Park Avenue building Diamond owned, and (per the Post) court records revealed that the judge “personally requested the Jacobs case file . . . six weeks before Linda Jacobs filed a petition” for child support.

 

But the alleged shenanigans don’t end there. In May of 2006, the Commission on Judicial Conduct reportedly investigated Diamond for allegedly changing official transcripts to help “cover up” favorable rulings in her friends’ cases. According to the Post, the court reporter admitted “making "substantial revisions" to transcripts at the judge's request in one case, which also involved a conflict of interest regarding the judge’s real estate holdings — an instance the FBI also found suspicious.

(The Commission Deputy Administrator, Alan Friedberg, declined to comment on the Diamond matter, saying that the CJC never comments on investigations.)

At least Diamond, a rare Republican amongst Manhattan’s largely Democratic judiciary, had official backing on one contentious 2004 decision. According to The New York Law Journal, that year the New York State Court of Appeals “offered its explicit support of the judge” when it upheld her verdict in the divorce case of Jacoby & Meyers owner Gail Koff.

Diamond had faced allegations of “ethical misconduct” for her connections to Koff’s attorney, a campaign donor who had hired Diamond’s former clerk while the case was being argued. The court upheld Diamond’s ruling in the tabloid-friendly case, in which she deemed the prenuptial agreement — containing language that specified the frequency of "particular sex acts — invalid.

At least one attorney also lauded the judge. Nassau County attorney Jeffrey Goldberg had no complaints regarding his appearance before the judge in a 2006 police pension fund dispute.

“I had a good experience with Diamond,” he said, “though it seems like most people haven’t. . . . Maybe it was an aberration.”

Gennarelli also had only positive things to say about the justice, before whom he has appeared twice in tort cases.

“She’s very intelligent and helpful with negotiations and knew the strengths and weaknesses of the case,” he said. “She was very well-versed in the law.”

The judge’s average time spent on the bench matched the citywide average, and her reversal rate is actually lower, 31.2%, as compared to the First Department average of 37.1%. She also proved industrious, disposing of 464 cases in 2005 and 502 in 2006; the 2005 median for her Part was 403.

Diamond’s early career on the bench was perhaps most noteworthy for her role in the infamous 1998 divorce of billionaire art dealer Alec Wildenstein and Jocelyn “Catwoman” Wildenstein (so named for her $4 million of plastic surgery, allegedly done to resemble her husband’s beloved Kenyan tigers). In a two-year trial conducted under intense media scrutiny, Diamond awarded Jocelyn $2.4 million per year from her “superrich” ex-husband but decreed that she "be responsible for all elective plastic surgery and cosmetic procedures."

Diamond earned the ire of the city’s once-notorious sex-trade business in 1996 (per the Daily News), when she upheld a law aiming to strip X-rated video stores and topless bars from residential neighborhoods.

"Those seeking to patronize adult establishments will be able to continue to beat a path to their doors," the judge wrote, adding that patrons will "need to travel a bit to satisfy their desires.”

For DeRosa, his desire is simple: “Marilyn Diamond shouldn’t be on that bench.”

Tell it to the judge.

Posted by Dirk on December 11, 2007 02:44 PM to Judicial Reports