Judge To Make Rare Appearance On Witness Stand

JAY STAPLETON

The Connecticut Law Tribune

11-16-2012

Judges are known for their authoritative words from the bench as fact-finders in civil and criminal matters. They are not typically known for their eyewitness testimony.

In an event that is especially rare in Connecticut, a Superior Court judge will be called upon to testify in a criminal trial of a Sherman man accused of trying to bribe the judge. The state's case against Dominic Badaracco — the trial had been originally scheduled for this month, but has been pushed back to early next year — relies heavily on the testimony of Superior Court Judge Robert Brunetti.

Badaracco, 76, has been identified as a suspect in his ex-wife's disappearance more than 28 years ago. From August 2010 until early this year, a one-man grand jury — an anonymous Superior Court judge — considered evidence and decided not to file murder charges. However, Badaracco was nonetheless arrested for offering Judge Brunetti $100,000 to help influence the grand jury probe.

Through his defense lawyers, Richard Meehan and Ed Gavin, of Meehan, Meehan & Gavin in Bridgeport, Badaracco has denied the bribery charge and awaits trial. In recent weeks, the venue was moved to avoid prejudicial publicity from New Britain, where Brunetti now hears criminal cases, to Middletown. A pre-trial hearing is scheduled for the first week of December before Superior Court Judge David Gold.

Connecticut courts, like those in other states, have long discouraged private attorneys and prosecutors from calling judges as witnesses unless there is a compelling need for their testimony. At the same time, a judge is not automatically disqualified from testifying by virtue of his or her office.

When the case goes to trial, Judge Brunetti will be asked by prosecutors to describe Badaracco's financial offer. Badaracco's lawyers will then get an opportunity to cross-examine Brunetti. Defense attorney Gavin declined to share any thoughts on what it might be like for a defense attorney to try to challenge the testimony of a judge "because I will probably be doing it." He did say, because the judge is a fact witness, there is no way to preclude his testimony.

Other lawyers who have no involvement in the case don't envy Badaracco's defense team.

"It's a very rare occurrence" for a judge to testify and face cross-examination, said Alan J. Sobol, a partner at Pullman & Comley's Hartford office and a former assistant U.S. attorney. "I think [having a judge as a complainant] is absolutely challenging for attorneys involved, particularly the defense."

One challenge for the defense is that most jurors will hold the judge in high esteem, said Sobol. Since many cases come down to the credibility of witnesses, "from a lay person's perspective, I think going in, credibility would tilt towards a sitting judge."

Another challenge with cross-examining a sitting judge, Sobol said, is finding a balance that avoids violating rules of professional conduct while advocating for the client as zealously as possible. For instance, the rules of professional conduct require that a lawyer avoid making comments concerning a judge's "qualifications or integrity."

"That rule is going to apply to any attorney who will be involved in cross-examining a sitting judge," Sobol said. "It could come up in cross-examination and it could come up in the closing argument. I think that rule of professional conduct would likely mean that the lawyer would be a little bit more careful and little bit more circumspect in his advocacy for the client in terms of what he says, because he or she is not going to want to run afoul of that rule."

John T. Walkley, a solo criminal defense practitioner in Milford, said he represented a client several years ago who was accused of threatening a Danbury judge who had sentenced him to prison. While feeling a need to "show great deference," Walkley said he was still able to effectively cross-examine Judge Joseph Sylvester.

In that case, Walkely focused his cross-examination on whether the judge "truly felt threatened" by letters sent by Walkely's client, rather than questioning the veracity of the judge's statements. "It was really, you could pick apart this or pick apart that, without showing the judge was making it up," Walkely said.

'Under The Rug'

It was in November 2010, three months after the grand jury was appointed, that Judge Brunetti reported to the Chief State Attorney's Office that he had received a call from Badaracco. The judge told investigators he was speechless when he heard the words through the telephone. "I'm only gonna say this one time," he said Badaracco told him. "…it's worth a hundred G's."

Brunetti hung up the phone and immediately called the authorities. "I understood it was about the Badaracco murder [case] and he was asking me to have some sort of influence over the outcome of the grand jury," Brunetti told the investigators, according to court documents. "Like sweep it under the rug."

Badaracco, a longtime owner of a bar and a construction company, acknowledges having a friendly relationship with Judge Brunetti.

Over the years, the two played golf together, along with Badaracco's former business partner, Ronald "Rocky" Richter. When he was still a private practice attorney, Brunetti had represented the Richter & Badaracco Siding Company in Danbury.

Authorities tried to take advantage of that relationship during their investigation. After Brunetti went to the authorities, they set up a recorded phone conversation between the judge and Badaracco, but Badaracco didn't repeat the alleged offer. A face-to-face meeting was arranged, which would have also been recorded, but Badaracco didn't show up.

And so the testimony of the judge will be especially important, because his is the only account of the alleged bribe.

'Big Hot Potato'

Perhaps one of the most high-profile instances of a Connecticut judge testifying took place in New London in the 1990s.

Shawn Tiernan, a senior assistant public defender in New London, said the lawyers around that coastal city still talk about the case of Jancis Fuller. Back in 1997, she was sentenced to 30 years in prison for shooting several bullets into the home of a neighbor, Superior Court Judge Robert C. Leuba, with whom she had some sort of disagreement.

"That was a big hot potato around here for a while," said Tiernan. "Jancis Fuller is still in jail."

At trial, Leuba testified about the shooting, and Fuller was found guilty of first-degree assault and carrying a pistol without a permit. On appeal, Fuller claimed that the trial judge, Thomas Parker, was "improperly influnenced" by his professional relationship with Lueba. Perhaps her most compelling point was that as deputy chief court administrator for the Judicial Branch, Leuba had supervisory authority over other judges, including Parker. That, Fuller argued, should have prompted Parker to recuse himself.

The state Appellate Court shot her down, finding there was nothing improper in how Parker handled the trial. "In addition, we find there is no evidence in this record to indicate that Robert C. Leuba, directly or indirectly, excercised any of his authority to affect the objectivity of the trial judge throughout this case," the court wrote.

Teirnan, who handles misdemeanor cases for the most part in the New London court, said confronting a judge's testimony on behalf of a client would be "terribly challenging."

"It's like anything else," he said, "you would want to approach the witness in a way that would help you achieve your purpose on behalf of your client."•