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November 1, 2019 - 4:19pm

Motion asks deputy county attorney to be removed from case over alleged conflict of interest

posted by Howard B. Owens in Durin Rogers, City Court, batavia, news.

A local attorney representing a woman accused of hitting her child with an object is asking a Family Court judge to disqualify Durin Rogers, and the County Attorney's Office, from prosecuting the case in Family Court because of a perceived conflict of interest.

Thomas A. Burns, representing Niasia Jiggetts, filed the motion Oct. 22 alleging that because Rogers is a sitting, part-time Batavia City Court judge, and Jiggetts is also facing criminal charges in City Court, it opens up an apparent conflict of interest in Rogers access to City Court documents and his interactions with other members of the county's criminal justice system.

If the motion was successful at removing both Rogers, who is also a deputy county attorney, and the County Attorney's Office, the Department of Social Services would need to hire another attorney not affiliated with county government to represent the agency in this case in Family Court.

"As this court is certainly aware, and as DCA Rogers should be aware, a judge is obligated to avoid impropriety and the appearance of impropriety in all of the judge's activities and a judge is obligated to respect and comply with the law and is obligated to act at all times in a manner that promotes the confidence of the public in the integrity and impartiality of the judiciary," Burns wrote in his motion. "As this court is also aware, the judicial duties of a judge take precedence over all of the judge's other activities."

The Batavian contacted Rogers, a candidate for the full-time City Court Judge office, on Wednesday and offered him an opportunity to respond. Rogers said before replying he needed guidance from the Judicial Campaign Ethics Center.

In a request for an interview or statement, Rogers provided the following statement:

As a City Court Judge I cannot comment on pending city court matters, even when it is a case that I am not presiding over. The motion you forwarded to me is directed to me as an attorney. As an attorney with the County Attorney’s Office handling neglect and abuse matters in Family Court, I cannot and will not discuss the specific allegations of such matters due to laws regarding strict confidentiality. As to the motion, it is scheduled in the regular course of proceedings. Based on the Ethics Opinion that I sought and received from the Advisory Committee on Judicial Ethics when I first took the bench that ethically permits me to hold both positions, the motion has no merit and I am confident that it will be denied.

He also provided a link to the January 2015 opinion.

In response to the statement from Rogers, Burns said the 2015 opinion is not a ruling and was issued in response to questions posed by Rogers about serving in two capacities in general, not to actual overlapping roles of a specific case.

"The facts present in my client’s case were never considered in the opinion he cites," Burns said. "He is well aware that the opinion does not provide him with the authority to hold the position of both judge and prosecutor in the same case and to suggest otherwise is a complete misrepresentation of the opinion he cites and a total lack understanding of the ethical obligations he should have assumed when he sought the part-time judge position."

Burns added that Rogers' statement doesn't address the rights of his client nor the direct conflict raised by his duel capacities.

"I also find it troubling that he suggests that he cannot comment on a pending City Court case when he continues to argue the case in front of Judge Adams and Judge Balbick as a prosecutor," Burns said.

Jiggetts was arrested in September for an alleged incident on June 10. She is charged with assault in the second degree. Since the case involves her minor child, there is both a criminal case pending in City Court (because it's a felony, it could be referred to County Court later) and a case in Family Court. The Family Court case also alleges neglect of her child from March through April 2017.

She has pled not guilty.

Burns alleges Rogers has a conflict of interest because he shares chambers with Judge Robert Balbick, the presiding judge in Jiggetts' case, with desks only 10 feet apart and they confer frequently. Also, even though the case isn't assigned to Rogers, he could be asked to sit in for Balbick, if Balbick is unable to make court on any particular day. Rogers also has unfettered access to all City Court documents.

As a City Court judge, Rogers also interacts with many of the people involved in these cases for a variety of reasons, including deputies, social workers, child advocates, attorneys and prosecutors.

As an example, Burns stated, when Jiggetts appeared in City Court on Oct. 1, the assistant district attorney handling cases in City Court that day, had to call Rogers to confer with him about the status of an order of protection issued in Family Court and to "remarkably" seek the input of Rogers about a possible order of protection signed by Balbick. Rogers, Burns said, "consented" to a no offensive conduct order of protection.

"The assistant district attorney should not have to be put in a position of conferring with the associate Batavia City Court judge relative to the status of a proceeding in this court with respect to the matter pending before the senior Batavia City Court judge," Burns wrote.

Burns said in his motion, Rogers' position as both a county attorney and a part-time judge has put a number of people in local criminal justice in "extremely uncomfortable and ultimately unethical positions."

"The appearance of impropriety under these circumstances is clear and results from the unwillingness of DCA Rogers to acknowledge the fact that he cannot prosecute a neglect proceeding involving a pending criminal court charge in the Batavia City Court where he is appointed to act as a part-time judge," Burns wrote in his motion.

While Rogers has been both a deputy county attorney and a part-time city court judge for some time, and Burns said he's had concerns in the past, this is the first time, in his view, there has been a clear conflict of interest.

"There are many cases that overlap but I have never seen one that is so over the top obvious as this one," Burns said in response to an emailed question. "I simply cannot understand the unwillingness of the County Attorney's Office to acknowledge the conflict present here."

Asked for a statement, County Attorney Kevin Earl said, "I cannot comment upon the specifics of any allegations, but I know that during my tenure as the Genesee County Attorney as his immediate supervisor, Durin Rogers has always conducted himself exhibiting the highest professional and ethical standards."

Rogers is being challenged for the full-time City Court judge position by attorney Ben Bonarigo. Burns attended Bonarigo's campaign kick-off event last year.

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