Judicial Misconduct Committed By Judge Stephen J. Fortunato, Jr. In Rhode Island Courts
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Caught.net would be negligent if we didn't applaud the retiring Judge Fortunato for deciding to assist the Family Life Center and other social causes in his retirement!
While Caught respects any judge who seeks to correct themselves, read this complaint and decide if Judge Fortunato acted appropriately. [Reported in The Providence Journal on 3-26-99] The RI Supreme Court said Judge Fortunato erred and was "clearly wrong" when he overturned his own finding of guilt in the rape trial of Monsignor Louis Ward Dunn. Judge Fortunato had said he learned from 80-90 letters sent after the trial that the Monsignor's lawyer [a former Supreme Court law clerk] was inexperienced in felony cases. Judge Fortunato had praised this same lawyer when he found the Monsignor guilty and this same lawyer had won the first case against the Monsignor. Judge Fortunato said the letters disclosed a "treasure trove" of information regarding the Monsignor's character which should have been explored at trial. The RI Supreme Court said:
Judge Fortunato , in contravention of court rules, had improperly raised on his own the question of the Monsignor Dunn's attorney's competency merely on the basis of "unverified and unreliable" information he received in letters written by "unknown persons." Judge Fortunato "should have refrained from injecting himself into what was then clearly an adversarial proceeding before him, and from assuming for himself a position and burden of proof that rightfully belonged only to the defendant."
[Note: the RI Supreme Court has repeatedly held that claims of ineffective counsel cannot even be entertained by a trial judge until after a defendant appeals his or her conviction to the Supreme Court and the appeal is denied. Also, the Monsignor never questioned or complained about his lawyer and neither did a substitute lawyer involved in the case.] The RI Supreme Court continued saying,
"Court rules preclude a trial justice from [on his or her own] raising and considering his or her own grounds for vacating a previous judgment. When a trial justice does so, he or she effectively transforms what had previously been the defendant's motion for a new trial into the trial justice's motion for a new trial and serves to preclude the trial justice from ruling on his or her own motion. Judge Fortunato erred in considering and ruling upon a motion that was no longer truly that of the defendant as required by court rules."
Caught note: In 1999, Rhode Island Superior Court Associate Justice Stephen J. Fortunato Jr. published a law review article in which he argued that judges who are subjected to false attacks on their decisions or their character ought to be free to defend themselves publicly. As Judge Fortunato himself recognized, however, he was advocating an extreme minority position.
[4-26-2001] While this complaint does not involve
judicial misconduct, Caught felt the public could learn from it
because Judge Fortunato's logic fell short...again. In a
April 6, 2001 Providence Journal op-ed piece, "Stealing newspapers
for free speech," Professor David Estlund from Brown University
argued that the Brown students who took copies of the Brown Daily
Herald were not violating the First Amendment, and that their
actions were not censorship, though Professor Estlund left open the
question whether the acts were justified. In an April 13
response, "Censorship by any other name is still . . . .," Stephen
J. Fortunato Jr., a Rhode Island Superior Court judge, offered
several arguments against the Brown professor.
Judge Fortunato says that it would be contrary to free speech to suppress a message simply "because it annoys or disturbs a person or group." He says the students were implicitly saying that, "we have the right to decide no one else should read the ad." The Horowitz ad was not in the edition of the Herald that the students took, but had already appeared in the Herald several days before. Since suppression of the Horowitz message was apparently neither the intention nor the effect of their action, Judge Fortunato's condemnation of suppressing annoying or offensive messages misses its mark.
Janice Scarpetti wrote in the Providence Journal editorial page that "...every time Judge Fortunato presides over a sex crime case, the criminal gets either a suspended or very light sentence..." Janice felt Judge Fortunato should step down or not preside over this kind of case.
Inappropriate mingling of religion and justice system in Rhode Island March 5, 2004
The Rhode Island judicial system is not based on any religious
faith or creed, nor was it ever intended to be, but one would never
know this from recent actions and statements by Chief Justice Frank
J. Williams of the Rhode Island Supreme Court and state Atty. Gen.
Patrick C. Lynch as reported in The Journal and elsewhere.
On Feb. 23, Attorney General Lynch presided over an interdenominational convocation at the First Baptist Church in America to honor former attorneys general. Along with religious leaders, the attorney general and Chief Justice Williams spoke at this event. In replying to criticisms that judicial officials were becoming improperly entangled with a religious ceremony and religious proselytizing, Mr. Lynch responded with medieval casuistry: "This is not about faith driving the office -- it's about faith supporting the office . . .".
Judge Williams has spoken even more starkly about religious faith and the responsibilities of the judicial office. "Without faith, you're dead," blared the headline in the Feb. 5 Providence Visitor, the official newspaper of the Roman Catholic Diocese of Rhode Island. These words of Judge Williams precede a lengthy and laudatory article about his religious beliefs and commitments.
Among other things, the judge declared "The United States was founded on Judeo-Christian principles." He then merged his theology with his foreign policy: "We need to have that same faith today as we face the war on terror."
>From a spokesman for the attorney general, Michael J. Healy, we learn that Mr. Lynch has the "belief that justice incorporates all faiths." We also learn from Mr. Healy that Attorney General Lynch has concluded that "the three great monotheistic religions -- Christianity, Judaism and Islam -- form the basis of the criminal-justice system."
This is dangerous territory into which the attorney general and the chief justice intrude as they breach the "hedge or wall" that Roger Williams said must separate church and state. The pronouncement that one needs a religious faith and that without it one is "dead" is a theological opinion, not a legal one. Liberty of conscience permits anyone to hold any faith they wish, but judicial officers should not proclaim their views from a church pulpit provided to them solely because they hold public office. Does anyone believe that if Frank J. Williams and Patrick C. Lynch were private citizens who did not hold important statewide appointed and elective offices, they would be invited to speak on matters of faith to any congregation?
Roger Williams, a man ahead of his times, believed that the separation of church and state would protect both institutions; but it is nothing new in the annals of history for secular officials to align themselves with the religious traditions of their perceived constituencies and to skew history while they are at it. While Mr. Lynch and Chief Justice Williams would like to convey that the Founding Fathers huddled over the Bible or other religious tracts in designing our government, our colonial predecessors were clearly more influenced by pagans, such as Plato, Aristotle and Cicero, as well as the philosophers of the Enlightenment, who were committed much more to reason than to faith.
To say that the legal system of this country is founded in Judeo-Christian principles is a statement so broad as to be meaningless. To be sure, there are numerous stories and examples of justice and mercy in the Bible, just as there are in the seminal texts and myths of any religion that has endured and provided solace to its adherents.
However, one can fairly inquire as to what Judeo-Christian principles justified the theft of land from Native Americans, allowed slavery and later Jim Crow, denied the vote to women, permitted child labor and justified the locking up of Japanese-Americans for no reason other than the color of their skin and the land of their ancestors. More currently, what Judeo Christian principles allow the incarceration of human beings without charge, without trial and without counsel. What Judeo-Christian principles support laws that let some people accumulate vast fortunes, while others work for substandard wages?
No person and no law in our democracy can stop anyone, including Attorney General Lynch and Chief Justice Williams, from worshipping as he or she pleases and holding any religious views they wish. Moreover, if the attorney general and the chief justice wish to share with a group of scholars, or any interested members of the public for that matter, the beliefs and experiences that undergird their political and legal viewpoints, they are free to do so -- but not from a pulpit at a religious, quasi-religious or pseudo religious ceremony. --Stephen J. Fortunato Jr. is a Rhode Island Superior Court judge.
In an article in the Providence Journal in the fall of 2007, the following observations were made regarding the retiring Judge Fortunato:
- For Fortunato, one controversial decision came in 1994, three years after one-third of Rhode Island’s residents were left for months without access to their savings during the state’s credit-union crisis. Fortunato acquitted Peter A. Nevola, the former head of RISDIC, the now-defunct financial institutions’ insurer, of defrauding his employer of thousands of dollars by lying about his political campaign contributions, saying the state had not met its burden of proof.
- But perhaps his most controversial decision came in 1997, when Fortunato overturned his verdict that Monsignor Louis Ward Dunn was guilty of raping a sexual-abuse victim who had sought counseling from him and ruled that the priest was entitled to a new trial. Some called for the judge’s impeachment. The state Supreme Court later reinstated the conviction. Fortunato, citing Dunn’s “gross physical problems and mental frailties,” sentenced the 79-year-old retired priest, who was in a nursing home, to a 10-year suspended prison sentence and ordered him to register as a sex offender.
- The judge’s published commentary pieces sometimes sparked controversy, too. In 1999, he lashed out at those calling for the impeachment of President Clinton for having sex with a White House intern, referring to the affair as “sexual encounters between consenting adults in the Oval Office” and “the private sexual adventuring of a president.” Some readers of The Providence Journal, including a juror who had sat on a case in his court, wrote in to complain.
- When Mary M. Lisi, the new chief judge of the U.S. District Court in Rhode Island, was being considered for a seat on the federal court in 1994, Fortunato wrote a letter to Senate Judiciary Committee Chairman Joseph Biden saying she was unqualified for the federal trial court.
- In a 2004 commentary piece, he lashed out at Rhode Island Chief Justice Frank J. Williams and Attorney General Patrick C. Lynch for what he considered to be the inappropriate mingling of religion and the justice system. That same year, he wrote a national magazine article questioning the ability of Williams to be fair in his role as a member of a military review panel that was appointed to hear appeals from suspected terrorists.