Last week, City Paper reported in its online edition about an Allegheny County senior judge who initially planned to fine a defendant $6 — $1 for each time the offender touched his then-15-year-old victim.
Allegheny County Common Pleas Court Senior Judge Lester Nauhaus proposed the fine April 26 during a summary appeals hearing in his courtroom. The defendant had been previously convicted by a district magistrate on a harassment charge and, by law, had the right to one appeal.
But now, Nauhaus might be the one facing a judicial panel. A spokesperson for Allegheny County District Attorney Stephen Zappala says the judge’s actions could lead to the filing of an official complaint with the Judicial Conduct Board of Pennsylvania.
CP sought comment from Nauhaus on May 4, but he did not return those calls. Later that night, however, he did comment to the Pittsburgh Post-Gazette. The judge told the paper that summary appeals, which he currently hears, are “incredibly contentious” and that he “didn’t mean to mock. I didn’t mean to denigrate.”
However, the victim who suffered the assault and appeared before Nauhaus is still dealing with the aftermath of the judge’s comments. The now-16-year-old victim had originally planned to speak to CP for this story to discuss the way Nauhaus’ comments made her feel. Not yet ready to speak about her experience, she cancelled her appointment to meet with CP. However, she sent CP a statement that she had posted on her Facebook page in the days following the judge’s decision.
“The one thing that keeps bouncing around in my head is ‘you are only worth $6 you are only worth $6 you are only worth $6.’ Yano, I try and tell myself I’m … priceless, but … a judge, a person that is supposed to make a call and fight for justice, told me that I am worth $6. Getting assaulted? That’s one thing. That keeps me up at night thinking about it. But getting told I’m worth $6? It crushes me. He might as well [have] told me I was worthless. Please, please, please, everyone that sees this, share the link and fight alongside us so we can try and gain justice for my [attacker], and for the judge putting a price on my assault.”
The incident that led to the original charges occurred last fall at a local high school. The victim’s mother tells CP that her daughter was walking down the hallway at her school when the defendant, who was then 17, grabbed the girl’s crotch. She pushed him away and he did it again. The victim then pushed the defendant into a row of lockers, and the confrontation was broken up by a teacher. A source with knowledge of the case tells CP that the female student “aggressively defended herself.”
The teacher brought the victim to school officials and the incident was reported to a police officer assigned to the school. The 15-year-old told her mother and the officer that the defendant had touched her several times in the past, but this was the first time she reported it. The male student, a football player, was suspended from school for three days and prohibited from playing in one football game, the victim’s mother said. The officer urged the victim and her family to press charges, which they did. (The victim’s name is being withheld because she is a juvenile. Though 18 now, the defendant was a juvenile at the time of the incident, and CP is not releasing his name either.)
The initial case went before a district magistrate, but the records of those proceedings are sealed because the case involved juveniles. The victim’s mother tells CP that the defendant did not appear and was fined $400 (the transcript from the appeal mentions a $300 fine.)
An attorney for the defendant, who is in foster care through Allegheny County’s child-welfare system, appealed the fine on her client’s behalf because he lacked the means to pay it. She proposed community service instead, while Assistant District Attorney Jeff Tisak asked for 90 days’ probation. That’s when Nauhaus, according to the court transcript, addressed the victim and then proposed the unorthodox fine.
“How many times did he touch?” Nauhaus asked the 16-year-old girl in open court.
The victim responded: “I’m going to say about six times maybe.”
That led Nauhaus to say: “A $6 fine.”
Tisak objected to the judge’s comments. The judge responded: “What do you want me to do? I can put him jail. Do you want me to put him in jail?”
“Your honor, we want the 90-days probation,” Tisak replied. “It is just highly inappropriate to tell a young girl that inappropriately touching is worth a dollar a time.”
Nauhaus reiterated that the defendant wouldn’t be able to pay a fine. Tisak told Nauhaus, “that’s not the point,” to which the judge replied: “Of course, it’s the point.” Tisak again tried to tell Nauhaus that his comments were inappropriate. The judge cut him off and ordered no fine, with community service, a no-contact order and the 90-day postponement. At the end of the hearing, Nauhaus said, “I feel bad for the victim, I really do. But there really isn’t much I can do.”
Reaction to the judge’s comments was swift. When asked to comment on the case, Mike Manko, spokesperson for District Attorney Zappala, told CP in an emailed statement that Zappala would be reporting the matter to the Judicial Conduct Board of Pennsylvania, and that this is not the first time that Nauhaus’ demeanor toward crime victims has been questioned.
“At the start of his tenure, District Attorney Zappala, working with the members of the victims’ policy board, made drastic changes to the way our office responds to PFAs [Protection From Abuse orders] and deals with domestic-violence cases,” Manko wrote. “In effectuating these changes, we dealt with the same type of conduct then as is being exhibited by this particular jurist now.”
Filing a complaint is both the first and last step that a citizen or the district attorney can take in reporting judicial misconduct. Once the complaint is made, it then moves to the Judicial Conduct Board. If charges are filed, it moves to the Court of Judicial Discipline, which, according to the Judicial Conduct Board of Pennsylvania website, “consists of four judges, two lawyers and two non-lawyers. Half of the Court members are chosen by the Governor, the other half by the Pennsylvania Supreme Court.”
The Judicial Conduct Board process has no fixed timetable and is confidential. However, if the case goes to the Court of Judicial Conduct, the proceedings are open to the public. Judges disciplined by the court may appeal to the state Supreme Court. The Judicial Conduct Board may also appeal if the charges are dismissed.
The dense procedure surrounding the complaint process can be time-consuming and difficult to navigate. In April 2017, Pennsylvanians For Modern Courts issued Report and Recommendations for Improving Pennsylvania’s Judicial Discipline System, in which the group recommended that the Judicial Conduct Board and the Court of Judicial Discipline “enact procedures and practices that promote greater transparency and accountability of [their] processes and decision-making,” in order to promote accountability and public trust.
“We have a recommendation that they make it easier to report misconduct,” says PMC Executive Director Maida Malone. “I don’t think there are any avenues necessarily built into the system other than citizens being able to file a complaint.”
The report also found that the processes are unnecessarily obscured. According to the report, “A citizen or lawyer should not be required to go on an Internet hunt to obtain basic and important information about procedures, rules, cases, or processes.”
Any citizen, regardless of whether they were involved in a particular case, can file a complaint. The form to file a complaint can be found at www.judicialconductboardofpa.org, but the form must be filled out and sent through the mail; there’s no way to electronically file a complaint.
At age 73, Nauhaus is officially retired. However, when he turned 70, he was approved for senior status by the state court administrator. Senior status allows retired judges to continue to serve the Commonwealth if there is a need.
That commission, according to state law, is at the discretion of the Pennsylvania Supreme Court. According to Rule 701 of the Pennsylvania Code: “Certification of a magisterial district judge, judge or justice for senior status shall be subject to the pleasure of the Supreme Court. The Supreme Court at any time, in the exercise of its sole discretion, may rescind or revoke a senior certification.”
The victim and her family aren’t the only people upset with Nauhaus’ comments.
Asked about the judge’s actions in the courtroom, Alison Hall, executive director of Pittsburgh Action Against Rape, says, “It’s very discouraging for somebody from the bench to speak to victims in this way.”
Hall says Nauhaus had a chance to make a difference in this case by respecting the victim’s situation, and “providing the offender with potential intervention to stop these dangerous behaviors from escalating into felonies.”
According to the hearing transcript, the defendant had been in the foster system for some time, and the DA’s office wasn’t seeking an excessive penalty. Even the defendant’s representative admitted that her client “acknowledges what he did on this particular incident was incorrect” and, as Nauhaus says, “at the end of the day, all you want is for me to be merciful, right?”
The American Judges Association is an organization whose goal, according to its website, is to “improve the effective administration of justice” and provide continuing education for members of the judiciary and the general public.
Minneapolis trial Judge Kevin Burke is the treasurer of the AJA and while he was not referring to this particular case, he tells CP that generally: “You do have to be concerned when the victim is a child, particularly. When you’re dealing with a child, that the language you use as a judge, and the messages that you send are really very, very critically important. When you’re dealing in areas of bullying or sexual harassment or worse, [the judge] needs to send a message [that the judge] will take complaints seriously.
“When you’re not careful about what you say and what you do, you can send messages that will undermine the public’s trust, confidence and respect for the justice system.”
Sue Frietsche, a staff attorney at the Women’s Law Project, agrees: “The fine Judge Nauhaus imposed sends the message that sexual assault is a trivial thing, and that justice is served if an offender is charged a dollar a touch. The judge never should have done that and owed that young woman more respectful and compassionate treatment.”
This isn’t the first time Nauhaus has come under fire for his decorum, or lack thereof, on the bench. In its March 29 issue, CP reported on Nauhaus’ handling of a harassment case filed by a local business owner. In that case, Nauhaus dismissed the harassment charge, saying the verbal harassment wasn’t that bad because “I have a president who talks worse than that.”
In this recent case, it appears as though Nauhaus might have once again referenced President Donald Trump. “Listen,” Nauhaus said from the bench regarding the touching, “I can name at least one adult that thinks that’s OK.” Tisak responded, “Yes, your honor. The Commonwealth does not.” Nauhaus then said: “I understand that. He’s an important guy.”
